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SACRAMENTO � The Ninth Circuit U.S. Court of Appeals on Friday declined to rehear a case involving a religious group’s use of a public library, prompting a pointed protest from the court’s conservative wing and a promise from the church’s lawyers to petition the Supreme Court. Judge Jay Bybee said the majority’s decision not to consider the First Amendment case en banc has “jettisoned three decades of equal access jurisprudence, created a constitutionally inferior category of religious speech, and given governments throughout our circuit license to favor certain religions over others.” Bybee was joined in his dissent by six colleagues. A spokesman for Alliance Defense Fund, the Arizona-based group representing Faith Center Church, said Friday that lawyers will soon file a petition for writ of certiorari. In refusing to rehear Faith Center Church v. Glover, 06 C.D.O.S. 8888, the court let stand a three-judge panel’s decision in September allowing Contra Costa County to prohibit the use of its public libraries for religious services. On May 29, 2004, Faith Center Church reserved and used a meeting room in the Antioch Public Library for a two-hour morning “wordshop,” a lecture and discussion of prayer methods, and two hours in the afternoon for “praise and worship.” The library later denied the church’s request to use the room again, saying the group was violating county policy banning religious services within its libraries. Faith Center Church sued, arguing among other things that the policy ran afoul of First Amendment protections of speech and association. Writing for a split panel in September, Judge Richard Paez said the county’s policy is reasonable in its attempts to prevent the library from becoming “an occasional house of worship.” “We see nothing wrong with the county excluding certain subject matter or activities that it deems inconsistent with the forum’s purpose, so long as the county does not discriminate against a speaker’s viewpoint,” Paez wrote.
Writing for a split panel in September, Judge Richard Paez said the county’s policy is reasonable in its attempts to prevent the library from becoming ‘an occasional house of worship.’

But on Friday, Bybee called that reasoning arbitrary and the decision one that authorizes discrimination toward religions that center around praise and worship of a supreme being. Such groups often have moral and ethical reflections in their services, but the worship component would bar them, but not groups that don’t include direct worship. “The last half-century has seen a flowering in this country of non-theistic religions that either do not recognize or do not worship any divine being. Rather these religions � concern themselves primarily, or even exclusively, with ethical principles,” Bybee said. “Although each of these groups conducts ‘religious services’ that may be highly ritualistic, none of them � by definition � engages in anything that could plausibly be called ‘mere worship.’”

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