Update: U.S. Supreme Court Sets Aside Ruling Regarding City Support Of Prayer Service Held In Public Park

In a procedurally complex case, the United States Supreme Court recently set aside a decision by the U.S. Court of Appeals for the Ninth Circuit, which had held that the City of Tucson rightfully refused to provide free equipment and services for a religious group’s celebration of the National Day of Prayer. [Gentala v. City of Tucson, 244 F.3d 1065 (9th Cir. 2001).]


The Day of Prayer event was held in one of the City of Tucson’s parks. After the event, the sponsors applied to the City’s Civic Events fund for payment of the cost of certain services (stage lighting, sound, and other services) provided by the City in connection with the event. The City denied the request for funding because of its policy that events held in “direct support of religious organizations” were not eligible. The policy existed in order to preclude the City from funding religious events in violation of the Establishment Clause of the First Amendment.

Procedural History

In a lawsuit challenging the City’s decision, the trial court ruled for the City. However, a three-judge panel of the Ninth Circuit Court of Appeals reversed the trial court, finding that the sponsors of the event should have been able to use city equipment and services free of charge, just like non-religious groups. (See KMTG Legal Alert, City’s Failure to Fund “Day of Prayer” Violated Free Speech Clause, May 31, 2000.) The City appealed, and a panel of 11 judges of the Court of Appeals, by an eight to three vote, held for the City and reinstated the order of the trial court.

The sponsors then appealed to the United States Supreme Court to review the Court of Appeals’ decision. In a two-sentence order, the Supreme Court set aside the Court of Appeals’ decision and sent the case back to the appellate court. The Supreme Court directed the Court of Appeals to reconsider its decision in light of the Supreme Court’s June 2001 ruling in Good News Club v. Milford Central School, 121 S. Ct. 2093 (2001). In Good News Club, the Supreme Court held that a public school violated the free speech rights of a private Christian organization when it excluded the organization from meeting after hours at the school. (See KMTG Legal Alert, U.S. Supreme Court Allows Christian Organization to Hold Meetings on Public School Grounds, June 11, 2001.)

Applying Good News Club

When applying Good News Club, the Court of Appeals will first have to determine whether City’s refusal to provide free services to the sponsors of the Day of Prayer event was based on viewpoint. If so, City’s refusal would likely be found to violate the free speech rights of the sponsors of the Day of Prayer event. The Court of Appeals will also have to determine, in light of the Good News Club decision, whether providing the free services will violate the Establishment Clause of the First Amendment.