ELON UNIVERSITY SCHOOL OF LAW BILLINGS, EXUM & FRYE NATIONAL MOOT COURT COMPETITION SPRING 2011 PROBLEM

ELON UNIVERSITY SCHOOL OF LAW BILLINGS, EXUM & FRYE NATIONAL MOOT COURT COMPETITION SPRING 2011 PROBLEM No. 11-217 IN THE SUPREME COURT OF THE UNITED STATES CONSTITUTIONAL RIGHTS ADVOCATES, INC., Petitioner, v. THE STATE OF NORTH GREENE; PATRICK HENRY, GOVERNOR OF THE STATE OF NORTH GREENE; THE NORTH GREENE DIVISION OF PARKS AND RECREATION; and VIRGINIA DARE, DIRECTOR OF THE NORTH GREENE DIVISION OF PARKS AND RECREATION, Respondents. RECORD ON APPEAL Page 1 of 14

No. 10-1652 IN THE UNITED STATES COURT OF APPEALS FOR THE FOURTEENTH CIRCUIT CONSTITUTIONAL RIGHTS ADVOCATES, INC., Appellant, v. THE STATE OF NORTH GREENE; PATRICK HENRY, GOVERNOR OF THE STATE OF NORTH GREENE; THE NORTH GREENE DIVISION OF PARKS AND RECREATION; and VIRGINIA DARE, DIRECTOR OF THE NORTH GREENE DIVISION OF PARKS AND RECREATION, Appellees. Argued September 7, 2010 Decided October 31, 2010 On appeal from the United States District Court for the Middle District of North Greene. Before: Monroe, Raleigh, and Madison, Circuit Judges. Madison, Circuit Judge. Constitutional Rights Advocates, Inc. appeals from the decision of the United States District Court for the Middle District of North Greene granting summary judgment in favor of Appellees and holding that: (1) the State of North Greene s adoption and commemoration of the Day of Prayer, pursuant to its Governor s Executive Order and N.G. Gen. Stat. 30.45, did not violate the Establishment Clause of the First Amendment to the United States Constitution; and (2) the State of North Greene did not violate Appellant s right to free speech in denying its request to participate in the ceremony commemorating the inaugural Day of Prayer at the state s Revolutionary War Memorial. Page 2 of 14

I Background On April 17, 1952, Congress enacted Public Law 83-324, establishing a National Day of Prayer. The law stated: The President shall set aside and proclaim a suitable day each year, other than a Sunday, as a National Day of Prayer, on which the people of the United States may turn to God in prayer and meditation at churches, in groups, and as individuals. Since 1952, every President has issued annual proclamations recognizing the National Day of Prayer. In 1988, Congress passed Public Law 100-307, which set aside the first Thursday in May as the date on which the National Day of Prayer is celebrated. In commenting on the National Day of Prayer, Senator Jesse Helms remarked that: America must return to the spiritual source of her greatness and reclaim her religious heritage. Our prayer should be that - like the Old Testament nation of Israel - Americans would once again humble themselves, and pray, and seek God s face, and turn from our wicked ways so that God in heaven will hear and forgive our sins and heal our land. On March 13, 2008, Patrick Henry, Governor of the State of North Greene, issued an Executive Order calling for the adoption of a Day of Prayer in the State of North Greene. The Executive Order stated: In a time when the United States, indeed the entire world, is troubled by the turmoil of military conflicts, religious disagreement and intolerance, economic chaos and other trials, it is time for all citizens to put aside their fundamental differences and celebrate their commonalities. In following the National Day of Prayer and allowing people to come together, we will recognize the common thread that ties us all together as human beings, and while we may pray to different gods, in the end we must support each other and know that our individual beliefs shall unite us rather than divide us. We must come together as a people and honor the principles that our Founding Fathers and our fallen heroes have sacrificed so much to uphold, to the point of spilling their own blood for the ideals upon which this country was founded. Prayer has always been central to this Country and this State, from the days of our Founding Fathers until today. We are told that our first President, George Washington, recognized the importance of prayer in his inaugural address to Congress, stating, it would be peculiarly improper to omit, in this first official act, my fervent Page 3 of 14

supplications to that Almighty Being who rules over the universe, who presides in the councils of nations and whose providential aide can supply every human defect, that His benediction may consecrate to the liberties and happiness of the people of the United States a Government instituted by themselves for these essential purposes. So, it is right and fitting that the State of North Greene joins the Nation and other states in recognizing a Day of Prayer, whereby its citizens may pray for peace and prosperity for this State, the Nation, and the world. Therefore, I hereby order that the State of North Greene shall adopt and celebrate a statewide Day of Prayer on the third Wednesday of June each year. In response to the Governor s Order, on July 30, 2008, the North Greene Legislature enacted General Statute 30.45: The State of North Greene hereby adopts a Day of Prayer, which shall be celebrated annually on the third Wednesday of June. On June 17, 2009, the State of North Greene held its first annual celebration commemorating the Day of Prayer at the Revolutionary War Memorial. The Revolutionary War Memorial is located in Elon, the capital of North Greene. The Memorial dates back to the end of World War II and consists of, among other things, a stone monument with the names of all of the state s military officers who have died in battle and 75 flags representing the birth counties of fallen veterans from every war since the Revolutionary War. The War Memorial is visited regularly by members of the public who wish to pay homage to the state s fallen veterans. Generally, these visitors walk through the Memorial, pausing briefly to view the monument and the flags on display, but, at times, they set out blankets or chairs in the Memorial to enjoy the surroundings or a picnic lunch. To hold an event at the Memorial, though, organizations and individuals must seek a permit from the Division of Parks and Recreation. These permits are generally granted as a matter of course, barring a scheduling conflict. Through the years, individuals and organizations, including a group honoring POW and MIA soldiers, have placed flags at the War Memorial. The Division of Parks and Recreation has no procedure for seeking approval to place these flags, but it has generally allowed them to remain on the site. In addition, the Division has, on rare occasion, cared for and maintained the flags. For instance, the POW/MIA flag was severely damaged during a thunderstorm in 2005, and the Division purchased and hung a new flag in its place when the POW/MIA group could not be contacted. The Division of Parks and Recreation coordinated the commemorative event. In February 2009, the Division issued an announcement about the celebration. It invited groups and organizations interested in participating in the ceremony to submit an application. The Page 4 of 14

application form required organizations to identify their mission, explain what role they would like to have in celebrating the Day of Prayer, and submit a draft of any reading, prayer, speech or musical performance they planned to present. Appellant timely submitted an application to the Division of Parks and Recreation. In the application, Appellant stated that its mission was, To protect and defend the Constitutional rights of every American, with a focus on the separation of Church and State. Appellant went on to state that it would like to have its president speak about why the Day of Prayer celebration violates the Constitution, advocate for peace, and stress the need to end all military conflicts so that no one else has to lose their life. The organization also requested that it be allowed, during its president s ten minute speech, to have its members circulate through the audience and pass out pocket-sized United States Constitutions along with pamphlets titled, Separation of Church and State: What it Means for North Greene. The evidence shows that seven other organizations submitted applications to the North Greene Division of Parks and Recreation requesting to be allowed to formally participate in the Day of Prayer event. These organizations included the Elon POW/MIA chapter, Elon Daughters of Veterans, the Jewish Synagogue of Elon, the Southern Baptist Church of North Greene, Muslims United, the Unitarian Church of North Greene, and the Moravian Church of Salem. All of these organizations submitted timely applications that included their mission statements, a copy of the speech or text they wished to present, and a description of the role they wished to play in commemorating the Day of Prayer. The Division of Parks and Recreation approved these seven applications and invited the organizations to participate in the Day of Prayer event. Each organization was assigned a ten minute slot during the hour and a half long ceremony. In preparation for the celebration, the Daughters of Veterans organization purchased a flag commemorating the Day of Prayer for display at the Revolutionary War Memorial. The flag consisted of a white background with a red cross in the upper left-hand corner. The Division of Parks and Recreation denied Appellant s request to participate in the Day of Prayer event. In a letter dated June 1, 2009, Virginia Dare, the Director of the Division of Parks and Recreation, wrote: Dear Constitutional Rights Advocates, Inc.: I regret to inform you that we cannot approve your application and extend an invitation for you to participate in the Day of Prayer event that will be held on June 17, 2009. We have reviewed your application thoroughly and determined that your mission and proposed involvement do not align with the fundamental values of the State of North Greene s Day of Prayer or this commemorative event. We appreciate your interest and invite you to submit an application next year. Sincerely, Virginia Dare Director of the North Greene Division of Parks and Recreation Page 5 of 14

The commemorative ceremony took place as planned on June 17, 2009. The seven approved organizations each participated in the ceremony. As indicated in their applications, the religious organizations read from their religious texts. The POW/MIA chapter read from the Declaration of Independence and the United States Constitution, as it had indicated on its application. The Daughters of Veterans organization had one its members, Susan Sharpe, speak about her father who had died in the Vietnam War. Ms. Sharpe spoke about her father s service to the country and her love for him, closing with the following prayer: Dear Heavenly Father, Today is a special day in the history of the State of North Greene. We gather here as people of many faiths, coming together in this inaugural event, to worship you. We gather here to honor those who have had the strength and courage to fight for not only this State, but for this country as well. We ask that you bless all of those in attendance and all of those throughout the country and that you continue to protect our young men and women serving overseas. Amen. The Daughters of Veterans had not mentioned in its application that its speaker would give a prayer. Immediately following the prayer, several high school ROTC students proceeded to raise the commemorative flag purchased by the organization. Its flag pole stood in the middle of a circle of the 75 county flags at the Memorial. Afterwards, a choir from the Baptist Church led attendees in singing the Battle Hymn of the Republic, the National Anthem, and America the Beautiful. Throughout the hour and a half long ceremony, protestors stood outside the gates of the Revolutionary War Memorial. Encouraged by Appellant s members, the protestors chanted Separation of Church and State! and held signs reading, Read the Constitution Lately? On July 1, 2009, Appellant filed suit, pursuant to 42 U.S.C. 1983, in the United States District Court for the Middle District of North Greene, alleging that: 1) The State of North Greene and Governor Patrick Henry violated the Establishment Clause by adopting and commemorating the Day of Prayer; and 2) The State of North Greene Division of Parks and Recreation and its Director, Virginia Dare, acting in her official capacity, violated Appellant s right to freedom of speech, in denying its application and refusing to allow it to participate in the inaugural Day of Prayer event hosted by the state on June 17, 2009. Page 6 of 14

After completing discovery, the parties filed cross motions for summary judgment. On December 4, 2009, in an unpublished opinion, the District Court granted Appellees motion for summary judgment and dismissed Appellant s claims, 1 holding that: 1) The State of North Greene s adoption and commemoration of the Day of Prayer did not violate the Establishment Clause; 2 and 2) The Division of Parks and Recreation and its Director, Ms. Dare, did not violate Appellant s right to free speech in denying its application and refusing to allow it to participate in the inaugural Day of Prayer event hosted by the state on June 17, 2009. 3 Appellant appealed the decision of the District Court, and we now AFFIRM. A. Appellant s Establishment Clause Claim II DISCUSSION The role that religion and prayer should play in public life has been a matter of intense debate in this country since its founding. Courts, including the United States Supreme Court, have decided several cases in recent decades regarding the constitutionality of public prayer in various contexts. While the Supreme Court has not yet decided whether the National Day of Prayer or other state-enacted Days of Prayer are constitutional, we are persuaded by the Court s previous opinions that it would conclude that the North Greene Day of Prayer does not violate the Establishment Clause. Rather than an endorsement of religion, the North Greene Day of Prayer constitutes an acknowledgment of the long-standing role of religion in American life and is indistinguishable from government practices that courts have upheld in the past. Accordingly, we hold that the North Greene Day of Prayer does not violate the Establishment Clause and affirm the District Court s decision on this issue. The First Amendment states that Congress shall make no law respecting an establishment of religion.... U.S. Const. amend. I. This provision is made applicable to the states by the Fourteenth Amendment. The Supreme Court has explained that the purpose of the Establishment and Free Exercise Clauses of the First Amendment is to prevent, as far as possible, the intrusion of either [the church or the state] into the precincts of the other. Lemon v. Kurtzman, 403 U.S. 602, 614 (1971). At the same time, however, the Court has recognized 1 The parties have stipulated for purposes of this appeal that Appellant had standing to challenge the adoption and commemoration of the Day of Prayer. Arguments related to standing are not germane to this appeal and will not be considered by this Court or on any subsequent petition to the United States Supreme Court. 2 The First Amendment to the United States Constitution and the corresponding provision of the North Greene State Constitution are identical, and the analysis of these provisions is the same. Accordingly, Appellant asserted only a claim under the United States Constitution. 3 Because the District Court held that the Day of Prayer celebration was constitutional, the State of North Greene held a similar event in June 2010. Page 7 of 14

that total separation is not possible in an absolute sense. government and religious organizations is inevitable. Id. Some relationship between In every Establishment Clause case, a court must reconcile the inescapable tension between the objective of preventing unnecessary intrusion of either the church or the state upon the other, and the reality that, as the Court has so often noted, total separation of the two is not possible. While courts have sometimes utilized the metaphor of a wall between church and state, [i]t has never been thought either possible or desirable to enforce a regime of total separation. Committee for Public Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 760 (1973). The Constitution does not require complete separation of church and state; rather, it permits some accommodation, beyond mere tolerance of all religions, and forbids hostility toward any. See, e.g., Zorach v. Clauson, 343 U.S. 306, 314-15 (1952); McCollum v. Board of Educ., 333 U.S. 203, 211 (1948). In evaluating whether a particular government action has crossed the line between permissible accommodation and impermissible endorsement of religion or, at the other extreme, impermissible hostility, courts have relied upon the test set forth by the Supreme Court in Lemon v. Kurtzman. Although this test has been criticized by certain Justices and commentators, the Court has never expressly overruled this test. We conclude that, under the Lemon test, the government action in this case does not violate the Establishment Clause. The Lemon test provides that government action violates the Establishment Clause if: (1) it has no secular purpose; (2) its primary effect advances or inhibits religion; or (3) it fosters an excessive government entanglement with religion. Lemon, 403 U.S. at 612. We analyze these factors in turn. We begin by determining whether the State of North Greene had a secular purpose in its adoption of the Day of Prayer and hosting of the commemorative event. In looking at Governor Henry s Executive Order and the content of the commemorative event, it is apparent that the purpose for adopting the Day of Prayer and hosting the event was to bring the citizens of North Greene together. With the political and religious tension that has put the entire world on edge, this annual event appears to be a sincere attempt by the State of North Greene to have its people put their differences aside and join together in a morally positive event. In bringing people of differing beliefs and opinions together, this event also celebrates diversity and the important role of religion in our history, both of which are laudable secular purposes. Moreover, the State of North Greene has offered another secular purpose for the Day of Prayer, and particularly the commemorative event: honoring the veterans of North Greene. The Governor s Executive Order specifically mentions military conflicts and those North Greene citizens who have sacrificed their lives in defending their country and its ideals. The Seventh Circuit has recognized that a law that promotes religion may nevertheless be upheld either because of the secular purposes that the law also serves or because the effect in promoting religion is too attenuated to worry about. Metzl v. Leininger, 57 F.3d 618, 620 (7th Cir. 1995). See also Marsh v. Chambers, 463 U.S. 783, 792 (1983) (recognizing that [t]he Establishment Clause does not always bar a state from regulating conduct simply because it Page 8 of 14

harmonizes with religious canons ). Much like the legislative prayer upheld in Marsh, the recognition of a Day of Prayer by the State of North Greene, while perhaps harmonizing with religious canons, does not promote or endorse them. Accordingly, we conclude that the State of North Greene s Day of Prayer and its commemorative event do, in fact, have a secular purpose. We turn next to the question of whether the adoption and commemoration of the Day of Prayer has the primary effect of advancing or endorsing religion. In support of its position, Appellant points to language in the Supreme Court s decision in County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U.S. 573 (1989), observing that the National Day of Prayer is a straightforward endorsement of the concept of turning to God in prayer. Id. at 672 (Kennedy, J., concurring in the judgment in part and dissenting in part). Initially, we note again that the Supreme Court has yet to consider the constitutionality of the National Day of Prayer. Id. at 601 n.52 (explaining that the Court expressed no judgment on that issue). Furthermore, in other decisions, the Court has commented on the existence of a National Day of Prayer without suggesting any constitutional infirmities. See Lynch v. Donnelly, 465 U.S. 668, 677 (1984) (holding that a governmental entity s display of a nativity scene did not violate the Establishment Clause and noting that the National Day of Prayer is one among countless other illustrations of the government's acknowledgment of the nation s religious heritage and governmental sponsorship of graphic manifestations of that heritage). In evaluating the effect of any particular governmental action, the focus is on whether a reasonable observer would view the government s conduct as endorsing religion. Zelman v. Simmons-Harris, 536 U.S. 639, 655 (2002). Appellant contends that a reasonable observer would view the State of North Greene s adoption of the Day of Prayer and its hosting of the commemorative ceremony as endorsing religion. It argues that the Day of Prayer endorses religion by encouraging North Greene citizens to pray, an inherently religious activity. It also points to the presence of multiple faith-based organizations and the prayer offered by Ms. Sharpe as further evidence that the State of North Greene was endorsing religion. We disagree. While the Day of Prayer and commemorative event may have some connection to religion, we conclude that it does not have the primary effect of endorsing it. In support of this conclusion, we note that the adoption of the Day of Prayer imposed no duty upon any citizen to pray or to attend the commemorative event. 4 Furthermore, while several faith-based organizations took part in the event, secular organizations participated as well. Finally, the prayer offered by Ms. Sharpe at the event was not approved by the government and, in fact, was offered on behalf of a secular organization. The Supreme Court has stated that the government crosses the line between acknowledgement and endorsement when it manifest[s the] objective of subjecting individual 4 Appellant has also suggested that the State of North Greene s adoption and commemoration of the Day of Prayer is coercive and, thus, violates the Establishment Clause. See Lee v. Weisman, 505 U.S. 577 (1992). We fail to see any element of coercion here. No one is forced to bow their head in prayer, observe a moment of silence, stand to recite a prayer, or even listen to a prayer. Observance of the Day of Prayer and attendance at the commemorative event are both open to the entire community but are also entirely voluntary. Accordingly, we find no coercion here. Page 9 of 14

lives to religious influence, insistently call[s] for religious action on the part of citizens, or expresse[s] a purpose to urge citizens to act in prescribed ways as a personal response to divine authority. McCreary County, Ky. v. American Civil Liberties Union of Ky., 545 U.S. 844, 877 n.24 (2005). The evidence does not establish that the State of North Greene intended to subject its citizens to religious influence, called them to religious action, or urged them to act in a personal response to divine authority. Federal, state, and local governments have a long tradition of acknowledging religion. The State of North Greene has simply acknowledged prayer and religion as an important element of its history and an important part of many of its citizens lives, recognizing the commonalities of its citizens in an attempt to bring them together. The Supreme Court has been more likely to find acknowledgement of religion permissible where, as here, it is part of a larger secular message. See, e.g., Lynch, 465 U.S. 668; Van Orden v. Perry, 545 U.S. 677 (2005). As explained above, the Day of Prayer and its commemorative event have multiple secular purposes. We further conclude that the primary effects of the adoption and commemoration of the Day of Prayer were to bring people of diverse cultures and beliefs together, recognize our country s veterans, and acknowledge the nation s religious heritage. These effects are permissible under prior Supreme Court precedent and do not violate the Establishment Clause. Finally, Appellant suggests that the State of North Greene s actions here foster excessive government entanglement with religion. Initially, we note that, outside of the funding context, the Supreme Court has not focused on the excessive entanglement prong. Moreover, we see no evidence that the adoption or commemoration of the Day of Prayer fosters excessive government entanglement. For the reasons stated, we conclude that the State of North Greene s adoption and commemoration of a Day of Prayer does not violate the Establishment Clause of the First Amendment to the United States Constitution. Accordingly, the District Court correctly dismissed Appellant s claim, and its decision is affirmed. B. Appellant s Free Speech Claim Appellant s second claim is that the Division of Parks and Recreation and its Director, Virginia Dare, acting in her official capacity, violated Appellant s free speech rights in denying its application and refusing to allow its members to participate in the Day of Prayer ceremony on June 17, 2009. For the reasons explained below, we conclude that Appellant s rights were not violated and affirm the District Court s grant of summary judgment for Appellees. The extent to which government can control access to its property depends upon the nature of the property at issue. DeBoer v. Village of Oak Park, 267 F.3d 558 (7th Cir. 2001). The Supreme Court has adopted a forum analysis to determine whether and to what extent the Page 10 of 14

government can regulate the speech activity on its property. The Court has identified several types of fora: a traditional public forum; a designated limited forum; 5 and a nonpublic forum. Appellant first suggests that the Revolutionary War Memorial is a traditional public forum, where restrictions on speech receive the highest scrutiny. A traditional public forum is a public place where, by long history, the public has gathered to speak, debate, and exchange ideas. See Perry Educ. Ass n v. Perry Local Educators Ass n, 460 U.S. 37, 45 (1983). Only those public places historically associated with the free exercise of expressive activities, such as streets, sidewalks, and parks, are considered, without more, to be public fora. United States v. Grace, 461 U.S. 171, 177 (1983). See also Frisby v. Schultz, 487 U.S. 474, 480-81 (1988). While the Revolutionary War Memorial may share some similarities with a park and has been used to some extent by members of the public, we do not believe that the Memorial can be said to be either a traditional public, or designated open, forum. Appellant also argues that the War Memorial is a designated limited forum. A designated limited forum is created by the purposeful designation by government of a nontraditional public forum for expressive activity. See Arkansas Educ. Television Comm n v. Forbes, 523 U.S. 666, 677 (1998); Cornelius v. NAACP Legal Defense and Educ. Fund, 473 U.S. 788 (1985). This designation can limit forum access to a class of people or for certain topics, see Perry, 460 U.S. at 46 n.7, thereby creating a limited forum. In a designated limited forum, the government may legally preserve the property under its control for the use to which it is dedicated. Lamb's Chapel v. Center Moriches Union Free Sch. Dist., 508 U.S. 384, 390 (1993). See also Rosenberger v. Rector & Visitors of the Univ. of Virginia, 515 U.S. 819, 829-30 (1995). Because the evidence discloses that the North Greene Division of Parks and Recreation allows organizations to use the Revolutionary War Memorial with its permission, we conclude that the War Memorial is a designated limited forum. Having classified the Revolutionary War Memorial as a designated limited forum, we must next examine the permissible scope of the government s regulation of expressive activities in such a forum. In Bronx Household of Faith v. Board of Educ., 226 F. Supp. 2d 401 (S.D.N.Y. 2002), the district court explained that, when the state establishes a designated limited forum, it is not required to allow persons to engage in every type of speech. However, the state must be justified in reserving a forum for certain groups or for the discussion of certain topics. Id. at 413 (explaining that the state s power to restrict speech is not without limits, as the restriction must not discriminate against speech on the basis of viewpoint, and the restriction must be reasonable in light of the purpose served by the forum). As these authorities make clear, the State of North Greene was not required to allow every group to participate in the commemorative event held at the Revolutionary War Memorial. The Division of Parks and Recreation and its Director were entitled to exclude Appellant, because it wished to address a topic not encompassed within the purpose of the event. The State of North Greene did not prohibit Appellant from use of the War Memorial in general; rather, it did not approve its application to participate in the Day of Prayer event. Despite Appellant s 5 We recognize that some court decisions also refer to a designated open forum. Because the analysis for a designated open forum is essentially the same as that for a traditional public forum, we do not address the designated open forum separately. Page 11 of 14

claims to the contrary, we do not believe that this amounts to viewpoint discrimination on the part of Appellees. For the reasons stated, we conclude that the North Greene Division of Parks and Recreation and its Director, Virginia Dare, did not violate Appellant s free speech rights under the First Amendment to the United States Constitution by denying its application to participate in the Day of Prayer ceremony at the Revolutionary War Memorial. Accordingly, the District Court correctly dismissed Appellant s claim and its decision is affirmed. For the foregoing reasons, we hold that the District Court correctly entered summary judgment in favor of Appellees as to each of Appellant s claims. Accordingly, the decision of the District Court is hereby AFFIRMED. Raleigh, Circuit Judge, dissenting. I would reverse the District Court s decision and grant summary judgment for Appellant on its Establishment Clause and Free Speech claims. Contrary to the majority s conclusion, North Greene s adoption of the Day of Prayer goes beyond a mere acknowledgment of religion and recognition of its historical significance in American society. Rather, its sole purpose is to encourage all citizens to engage in prayer, an inherently religious exercise that serves no real secular purpose. While the State of North Greene has not endorsed one religion over another, it has endorsed religion over non-religion. See McCreary County, Ky. v. American Civil Liberties Union of Ky., 545 U.S. 844, 883 (2005) (O'Connor, J., concurring) ( When the government associates one set of religious beliefs with the state and identifies nonadherents as outsiders, it encroaches upon the individual's decision about whether and how to worship. ). Accordingly, I would hold that Appellees have violated the Establishment Clause. I would also hold that Appellees have violated Appellant s right to free speech under the First Amendment. Contrary to the majority s conclusion, I believe the Revolutionary War Memorial should be appropriately characterized as a traditional public form, much like a city park. See Pleasant Grove City, Utah v. Summum, 129 S. Ct. 1125, 1132 (2009) (recognizing that members of the public have strong free speech rights in spaces such as public streets and parks and that the government is strictly limited in its ability to regulate speech in these spaces). The record discloses that members of the public visit the Memorial regularly and organizations use it frequently. While the Division of Parks and Recreation argues that organizations must seek approval to use the space, this approval is granted as a matter of course and, thus, does not substantially change the character of the space as one open to the general public without limitation. If the Memorial is characterized as a traditional public forum, then there is little doubt that Appellees violated Appellant s rights in denying its application, as the Division of Parks and Recreation has failed to offer a compelling reason for denying Appellant s application. See Pleasant Grove City, 129 S. Ct. at 1132 (recognizing that, while reasonable time, place and manner restrictions are allowed, any restriction based on the content of the speech must satisfy Page 12 of 14

strict scrutiny, that is, it must be narrowly tailored to serve a compelling government interest and must not be based on viewpoint). Even if the War Memorial is viewed as a designated limited forum, as the majority concludes, Appellees have still impermissibly infringed upon Appellant s free speech rights. The Division has suggested that its decision to deny Appellant s application was based on the fact that Appellant s proposed involvement did not fit the subject of the Day of Prayer ceremony. However, I believe that the evidence presented establishes that the Division of Parks and Recreation, in fact, has engaged in viewpoint discrimination. It obviously approved the applications of organizations that hold viewpoints similar to its own, while denying the application of the one organization that espoused a contrary view. This viewpoint discrimination is impermissible. See Pleasant Grove City, 129 S. Ct. at 1132 (recognizing that, while a government entity may create a forum that is limited to use by certain groups or dedicated solely to the discussion of certain subjects, any restrictions imposed on speech must be reasonable and viewpoint neutral). I would, thus, hold that Appellant is entitled to summary judgment on its free speech claim. Moreover, while not specifically addressed by the majority, I note that Appellees could avoid the First Amendment speech problem only if the speech here was that of the government itself. The evidence reveals that the sponsor and coordinator of the event, the Division of Parks and Recreation, accepted applications from organizations wishing to participate in the event and asked each organization to submit a draft of any reading, prayer, speech or musical performance it planned to present. By approving each participant and, in fact, reserving editorial discretion to approve what each organization said at the event, the Division of Parks and Recreation was in essence the speaker throughout the event. Under recent Supreme Court precedent, the government as speaker has the right to speak for itself and is entitled to say what it wishes and to select the views that it wants to express. See Pleasant Grove City, 129 S. Ct. at 1131. Because the Division of Parks and Recreation could select the views it wanted to express through the commemorative event, it follows that, as a part of selecting this view, the Division might also be able to exclude individuals or organizations like Appellant whose views do not fit its own, either generally or for purposes of this one event. A holding that the Division of Parks and Recreation was engaged in government speech would not absolve it of liability here. Rather, the government speech in this case would amount to an endorsement of religion and run afoul of the Establishment Clause. See Pleasant Grove City, 129 S. Ct. at 1131-32. Thus, even if Appellees were the speakers, their actions and speech still violate the First Amendment. For the foregoing reasons, I would reverse the District Court s decision and grant summary judgment for Appellant. Therefore, I respectfully DISSENT from the majority s opinion. Page 13 of 14

No. 11-217 IN THE SUPREME COURT OF THE UNITED STATES CONSTITUTIONAL RIGHTS ADVOCATES, INC., Petitioner, v. THE STATE OF NORTH GREENE; PATRICK HENRY, GOVERNOR OF THE STATE OF NORTH GREENE; THE NORTH GREENE DIVISION OF PARKS AND RECREATION; and VIRGINIA DARE, DIRECTOR OF THE NORTH GREENE DIVISION OF PARKS AND RECREATION, Respondents. ORDER Petition for Writ of Certiorari to the United States Court of Appeals for the Fourteenth Circuit is GRANTED. The issues before the Court are: 1. Whether the State of North Greene s adoption and commemoration of the Day of Prayer, pursuant to its Governor s Executive Order and N.G. Gen. Stat. 30.45, violated the Establishment Clause of the First Amendment to the United States Constitution? 2. Whether the State of North Greene violated Petitioner s right to free speech in denying its request to participate in the ceremony commemorating the state s inaugural Day of Prayer at the state s Revolutionary War Memorial? Page 14 of 14