If the group does not characterize its proposed use as worship, she said, and they don't use it as a house of worship, then absent some obvious evidence to the contrary, the group can use the school.
Calabresi asked what happens if a group applies saying that worship services are not part of the plan, but then proceeds to advertise worship services once it gets the permit.
"We have to be deferential" to the constitutional and religious rights of the applicant, Gordon said, but "we don't have to be stupid."
Gordon said the city is entitled to some finality on an issue it has seemingly litigated forever.
"I couldn't agree with you more," Walker said. "Fifteen years is a long time for a lawsuit."
Lorence engaged the judges with aggressive arguments, insisting under questioning from Calabresi and Leval that the rule should be subjected to strict scrutiny analysis—proof that the rule serves a compelling governmental interest and is narrowly tailored to achieve that interest.
The mere fear that the Board of Education could be sued for violating the establishment clause is too speculative to constitute a compelling interest, Lorence said.
He said that once the city opens up the forum, "the government must justify what it's targeting."
Lorence also said the city's supposed fear of appearing to endorse a religion should be put in context.
The city seem "to have no concern" that it is "violating the free exercise clause," he said.
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