Opinion: Sssshhhh!

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When is a public library not a public library? When it’s a church. The U.S. Supreme Court didn’t offer that common-sense explanation — or, any explanation, for that matter — when it declined this week to hear a challenge to Contra Costa County’s refusal to allow religious services in library space made available to community groups. But the justices — liberal and conservative — may have been troubled by the real-world consequences of treating worship as a form of free speech.

The “wall of separation” between church and state described by Thomas Jefferson is necessarily a porous one, partly because of a tension between the two so-called religion clauses of the First Amendment. One clause says that Congress (and by extension the states) may not legislate the “establishment” of religion; the other says that government may not prohibit the “free exercise” of religion.

But refusing to allow religious services in a public library is hardly a prohibition of the “free exercise” of religion, which is alive and well in churches, mosques and synagogues that, along with secular non-profit groups, enjoy tax-exempt status. And, wisely, lawyers for Pastor Hattie Hopkins, who wanted to hold services at a library in Antioch, focused on a different constitutional argument.

‘Religious worship is not a second-class form of expression that the government may ban from a forum generally open for indistinguishable ‘secular’ expression,’ the lawyers said. This argument relied on a 2001 case in which the Supreme Court ruled that a school district couldn’t bar a Christian youth group from meeting on school grounds on the same basis as other organizations.

This is more a free-speech argument than a freedom-of-religion argument; still, given recent decisions about “equal access” for religious groups on public property, it’s surprising that at least four justices wouldn’t agree to take the case. So why didn’t they?

It may be that even conservative justices agree with the 9th U.S. Circuit Court of Appeals that there is a clear distinction between religious speech and worship. Or it may be that they had a sudden vision of a library in which patrons would have to close their eyes or ears to escape the revival meeting or High Mass in the adjacent room. Pastor Hopkins’ church, in deference to the sensibilities of library patrons, agreed not use musical instruments or amplified sound. But other worshippers might not be so restrained in heeding the call of Psalm 100 to “make a joyful noise unto the Lord” — in a library!