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Nyle Zikmund Mark Beer July 22, 2021 Page 2 • Reflect a secular purpose; • Advance or inhibit religion as its primary effect; • Avoid excessive government entanglement with religion? When phrased as above, the answers must be "yes, no, and yes," respectively. Additionally, courts have elaborated on the second prong of the Lemon Test by creating what is called the "Endorsement Test". This test asks "does the challenged government practice have the effect of communicating a message of government endorsement or disapproval of religion?" As applied to the MVCC, the analysis becomes: • What is the secular purpose of leasing the MVCC space to a religious group? Is the City motivated solely by securing an income from the space? Was the lease offered to other groups, including non -religious groups? • Does the lease of the space advance a religion? Does it have the effect of conveying a message of government endorsement of the religion? • Does the lessor/ee relationship create excessive government entanglement with the religion? The Establishment Clause concerns can likely be met as long as the City is careful to conduct the leasing of the building in a way that passes the above tests. Specifically, the City should do the following: 1. Make the lease available to more than one group, and not give preference to religious groups. Ideally, the lease would be made available to all private organizations or persons who might wish to utilize the space. 2. Pass a resolution stating that the purpose of the lease is to generate income from the space (and NOT stating any religious motivation). 3. Not allow the lessee to affiliate itself with the City or in any other way make it look like the City is endorsing the group. 4. Use a standard lease that keeps the relationship between City and religious group simple and professional. In particular, the lease should be negotiated in an arms -length transaction. The main concern is creating vulnerability to lawsuit caused by an appearance of City endorsement of or support for the religious group. This is particularly acute in the present circumstances, where the space in question is part of the City's community center. The question to ask is "could an observer reasonably conclude that the religious group is in any way affiliated with or supported by the City?" The fact that the Pursuit Church's offices would be located in MVCC through a lease and allowing them to have their name on the sign contribute to such a conclusion. There is case law citing location as a determining factor in Establishment Clause violations. The Court has observed that a City's concern for potentially violating the Establishment Clause is a compelling reason for adopting a conservative approach to issues like the instant question. So a good argument can be made that where there is a danger of the appearance of an Establishment Clause violation, as there arguably is in the instant case, a city is justified in taking steps to avoid the possibility of facing a constitutional attack in court. On the other hand, if the City denies a religious group the opportunity to lease a public building solely on the grounds of the group's religious purpose, the City is at risk for a Free DOC SOPEN\MU210\3 5\736320.v3-7/22/21