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SAN JOSE � U.S. District Judge Lawrence Karlton is not one for subtleties. Sitting by designation on a Ninth Circuit panel charged with deciding whether a religious group can hold services in a public library, Karlton � who revived the Pledge of Allegiance controversy last year with a decision that struck it down � found plenty more to say about what he called the “sorry state of the law.” In the opinion filed Wednesday, the court ruled that while a Contra Costa County library cannot exclude speech merely because it is religious, the library may bar actual religious services from being held in its meeting rooms. Ninth Circuit Judge Richard Paez wrote the majority opinion. And even though Karlton signed it, he sounded off in a separate concurrence on what he sees as the high court’s misguided precedents confusing the free speech and establishment clauses of the First Amendment. “It may be that the majority of the Supreme Court really has doubt about the ability to distinguish between religious practice and secular speech,” Karlton wrote. “If so, they need only leave their chambers, go out in the street and ask the first person they meet whether in the instant case the conduct is religious in character,” Karlton continued. “It is simply untenable to insist that there is no difference” between a prayer and political speech. “To coin a phrase, one can only pray for the court’s enlightenment.” He concluded: “I concur in the [Paez] opinion because, as a subordinate judge, it is my duty to adhere to the precedent of the Supreme Court ‘no matter how misguided.’” Judge Richard Tallman disagreed with the majority, writing in his dissent that the county “has unlawfully excluded certain members of the community from engaging in activities that fall squarely within the policy’s scope.” According to county regulations, Contra Costa public library meeting rooms “shall not be used for religious services.” Faith Center Church filed a request to hold religious workshops at the Antioch Branch Library in 2004. The group held its first meeting, but then was told by library staff that it couldn’t hold its second event because the material being presented was against county regulations. The church group sued, calling the library policy facially invalid and “not justified by a compelling governmental interest.” Lawyers representing Faith Center Church Evangelistic Ministries say they will appeal. “Christian community groups should not be treated any differently than other community groups,” Benjamin Bull, the chief counsel for Alliance Defense Fund, said in a statement. “The panel of judges in this case unfortunately ruled in a way which allows libraries to unconstitutionally exclude certain members of the community from public meeting rooms based upon the content of their speech.” Kelly Flanagan, a deputy county counsel for Contra Costa, said her office remains “optimistic” that the Ninth Circuit opinion will be upheld if it is appealed. In his opinion, Paez wrote, “The ability of the government to limit speech in a traditional or designated public forum is sharply circumscribed.” But the decision to exclude the Faith Center’s workshop from the meeting room, Paez added, “is reasonable in light of the library policy so that the Antioch forum is not transformed into an occasional house of worship.” The case is Faith Center Church v. Glover, C.D.O.S. 06-8888.

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