Reed v. Town of Gilbert and false neutrality.

The Town of Gilbert, Arizona, does not like church signs on its streets. A few years ago, it passed a special limit on “Religious Assembly Temporary Directional Signs.” The Religious Assembly signs had to be smaller than “ideological” and “political” signs. And Religious Assembly signs could be displayed for less than a day, while political signs could be up indefinitely.

Clyde Reed is the pastor of Good News Community Church, a church that doesn’t have a permanent building. Good News relied on signs to direct visitors and members to services. Good News tried to put out some generic directional signs. The Town told Good News that these signs ran afoul of the ordinance. It wanted Good News to include service times — so that the City could police the time limitations on ‘events.’

When Reed complained that the Town could not discriminate in this way, the Town amended the ordinance. Now called a “Qualifying Event Temporary Directional Signs” ordinance, it included a few other nonprofit categories. There was no good reason given for “nonprofit event” signs to be treated differently. Reed filed suit.

Both the District Court and the Ninth Circuit went out of their way to say the ordinance was “content neutral.” A law that is not content neutral would almost always be struck down. And to get there, both courts took the Town at its word, that the Town didn’t have an improper purpose in adopting the ordinances.

The Supreme Court docketed the case for this fall, asking whether legislative intent has any role here. Scholars from the left and right agree that purpose doesn’t matter, if the result benefits some kinds of speech.

That criticism is right. The ordinance is not ‘content neutral’ about speech.

Today, we filed an amicus brief on behalf of the Missouri Baptist Convention’s Christian Life Committee, to support Good News Community Church. Baptists plant new churches. And church planters all over America told us that signs can be the best way to reach people — especially the disadvantaged. The gospel is for everyone, not just audiences between the ages of 18 and 35. So it is important for churches that laws are strictly content neutral.

But we also wanted to highlight how tenuous religious liberty claims have become. The Town’s rule penalizes religious speech and practice. Under the Free Speech Clause, the Town’s intent doesn’t make the rule acceptable. But under the religion clauses, the legal analysis is murky.

This is another example of the mish-mash that has become the constitutional law of religion. The hasty protest of “we didn’t mean to harm religion” has generally been enough to avoid claims of religious discrimination. Rules that curtail speech, even unintentionally, trigger harsh review. Rules that curtail religion can run in a fog of intent, where discrimination may slip review.

Here, the Town of Gilbert propped up its ordinance with a couple of non-religious categories to create a false impression of neutrality. This was a legal Weekend at Bernie’s. Yet the district and appeals courts gave a smile and a nod to the ‘group,’ and moved on. If towns can so easily evade religious discrimination claims on facts like these, the trigger for review is meaningless.

Religious liberty is protected by strong free speech rules. But it is disturbing that the three parallel commands in the First Amendment achieve such different results. For religion claims, “Congress shall pass no law…” is becoming “Congress shall pass no law intending to…” If the 9th Circuit’s ruling stands, we’ll all be stuck with a free speech Lemon.