Guest Commentary
by Jason Jackson (pictured below)
Recently the City of El Cajon entered into a deal with the Rock Church to permit the Rock to lease the currently shuttered East County Performing Arts 
Theater on Tuesday evenings and Sundays. The deal would net the city more than $200,000 in revenue while enabling the city to reopen the theater, closed since 2009 for budgetary reasons, for performances during the week and on Saturdays. El Cajon Mayor Bill Wells also expects the deal to stimulate the local economy by bringing commercial activity into the downtown area. “Our downtown can explode with this deal, which will bring about 15,000 thousand people into the downtown area every weekend. Those people will be customers for our stores and restaurants,” Wells said. In a result that is a rarity for government, this one really is win-win-win for all stakeholders.
For a handful of protestors attempting to block the deal however, this result more closely resembles the Koybayashi Maru – not merely a no win situation, but a game for which they would like everyone to lose. The protestors, who espouse views hostile to Christianity and advocate for government regulation of church services, contend that the lease deal is an unconstitutional violation of the Establishment Clause. Yet the protestors concede that it is constitutionally permissible for the Rock to use the ECPAC facility. Their objection is merely to the duration of the lease deal. The legal argument the protestors raise in support of their objections is flimsy at best.
The First Amendment states “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The protestors argue that the lease deal runs afoul of the Supreme Court’s interpretation of this clause in Lemon v. Kurtzman (1971), in which the Court outlined that a government action would be impermissible under the Constitution if it didn’t have a secular purpose, if the principal effect was the advancement of religion, and the action resulted in an excessive entanglement of government with religion. Contrary to the protestor’s arguments, the city’s purpose and effect is to generate revenue and to open the ECPAC for the enjoyment of the whole community – not advance religion. “The public wants this theater open, and as a city government we were committed to doing that. We understand that running a city isn’t always about budget; there are decisions that are important to provide quality of life for residents. This deal enabled us to do that in a responsible way,” Mayor Wells said. As to the protestors claims that the duration of the lease will result in an impermissible entanglement of government and religion, that is a legal claim unsupported by any existing Supreme Court precedent. As to the legitimacy of those concerns the Mayor added, “The city is going to maintain full ownership of the building and full operational control. The Rock Church will have no say over the use of the facility outside of the days that are designated for their use.”
Contrary to what the protestors would have us believe, the Supreme Court prohibits hostility toward religion and protects religion’s historic place in the public square. In recent years the Court has found prayer before city council meetings and the display of the Ten Commandments on public land to be constitutionally permissible, and held that restraint on religious use of public facilities to be a violation of those organizations free speech rights and religious liberties.
These more recent Court decisions are in keeping with the original intentions of the Founding Fathers. Far from believing, as the protestors would have us do, that separation of church and state requires the state to put up walls between faith and the public square, the Framers acknowledged God as “the Universal Sovereign,” and “Supreme Lawgiver,” over whom civil society had no jurisdiction, and thus the state must allow everyone to have an opportunity to follow their conscience (see James Madison, Memorial and Remonstrance Against Religious Assessments. See also Thomas Jefferson, The Virginia Statute of Religious Freedom).
I am sympathetic to the protestors in one respect – it baffles me how the City of El Cajon could have ever imagined that managing a performing arts theater was one of its functions. When government grows outside of its traditional role, it invites conflicts like this one between citizen groups that would otherwise have no quarrel with one another. In this instance, The City of El Cajon and The Rock Church should win, but one wishes the fight had not been necessary.
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Jason Jackson graduated from the United States Naval Academy in 2002. After graduation, he deployed as a naval officer in support of the War on Terrorism, earning the Navy Commendation Medal, the Navy Achievement Medal, and numerous campaign and unit citations for his service in the conflict. He has a master’s degree in Political Science from San Diego State University, and a law degree from Thomas Jefferson School of Law in San Diego, CA. He was a contributing author to the war memoir, In the Shadow of Greatness, and has also written several papers on constitutional law and election law. To learn more about Jason click here for his personal website.
The column above was published on the author’s blog, jeffersonjackson.com, and appears on SD Rostra with Mr. Jackson’s permission.
Comments 6
Ray Lutz and Mayor Bill Wells argue the merits of the Rock Church leasing the East County Performing Arts Center for two days a week, on KPBS…
http://www.kpbs.org/news/2014/sep/09/controversy-surrounds-future-east-county-performin/
I will agree with Jason that El Cajon would do well to get out of the theater business. Maybe Mr Lutz can buy the theater and exclude whomever he wishes.
Churches “incubate” in schools, civic centers, community rooms, and even city halls all over this land. In California, many of us vote at churches on Election Day. In fact, I vote at a Methodist church and I have resisted the implied City endorsement of that denomination for 11 years now (that’s sarcasm).
If any of this happens, I’d suggest the City of El Cajon also make the Rock buy them an armored vehicle.
I spent a year or two defending a land use case where the city of SD was entering long term lease negotiations to build the Hillel Jewish student union–clearly a religious group. In my case, no one argued this violated the First Amendment, but a few squirrels might have to move off this big median. At the same time, my buddy who was best lawyer in the office lost a case arguing that the city couldn’t lease space to the Boy Scouts on Constitutional grounds. Point being, that’s the way she goes. Sometimes she goes, and sometimes she doesn’t go.
David,
If I remember the Boy Scout case correctly, the question wasn’t whether the City could lease the land to a group that excluded atheists and homosexuals, but whether the City could lease the land for only $1 per year. There should be no issue with the government leasing land to any legal entity, religious or not, as long as that entity pays fair market value.
I didn’t handle the Boy Scouts case but a finding that it was a religious organization was crucial to the outcome & finding of unconstitutionality. It was up on appeal, partially reversed I recall.