A dissent by Judge Tallman argued that any attempt by the County to distinguish worship from other kinds of religious speech would create excessive government entanglement with religion, in violation of the Establishment Clause.
However, the most interesting reading was Judge Karlton's concurring opinion. He wrote:
The San Jose Mercury News covers the decision. (Also see prior related posting.)I concur in Judge Paez's well-reasoned opinion, which reflects the sorry state of the law. I write separately to express my dismay at that sorry state.
This should be a simple case it asks whether the county can be forced to subsidize a religious organization's prayer meetings by requiring it to provide the religious organization with a free place to worship. A quick reading of the First Amendment to the Constitution of the United States should answer the question....
[Prior cases] turn on the High Court's purported inability to distinguish between a sermon and a speech. That distinction, however, is compelled by the First Amendment.... [R]eligious speech is categorically different than secular speech and is subject to analysis under the Establishment and Free Exercise Clause without regard to the jurisprudence of free speech.
Those, like myself, who advocate adherence to the strictures of the Establishment Clause, do so not out of hostility towards religion.... Rather, we are motivated by recognition of the passions that deeply-held religious views engender, and the serious threat of marrying those passions to government power.... That threat is not merely historic. One need only look about the world to see that danger in play.
