When a local New York branch of the Good News Club asked to meet at Milford Central School after hours, the group didn’t consider its request unusual. After all, Milford Central’s facilities were often used as a public forum for similar groups, such as the Girl Scouts, the Boy Scouts, and 4-H Clubs, as well as a variety of adult organizations. The Good News Club is different from these groups in only one way—it is a community-based youth Bible teaching club.
Milford Central School refused the club’s request, citing a policy of restricting its public forum facilities to secular groups only. The club filed a lawsuit and lost. Attorneys appealed to the U.S. Supreme Court, and the Court agreed to hear The Good News Club v. Milford Central School in February. A decision was expected in May or June.* That decision will affect not only student Bible clubs, but also churches and religious assemblies that rent public facilities for weekly worship services, midweek prayer meetings, or Bible seminars.
If this case gives some people a sense of deja vu, it’s not surprising. Many thought the issue was settled back in 1993 with Lamb’s Chapel v. Center Moriches Union Free Sch. Dist. The Lamb’s Chapel case involved the showing of a Christian film at a public high school. In Lamb’s Chapel, the Supreme Court ruled 9-0 that the exclusion of religious groups from public facilities that otherwise welcomed similar but secular programs and events violated the free speech rights of religious groups, and that the establishment clause neither required nor justified such exclusions. So why has the issue resurfaced nearly eight years later? The answer lies in a recent lower court decision.
In 1997, in The Bronx Household of Faith v. Community School District No. 10, the court ruled that religious programs are generally organized by churches, therefore such groups can indeed be excluded from public forums, because churches present “religious instruction or worship” at their meetings, not simply religious “viewpoint.” In other words, according to Bronx Household, religious “viewpoint” is protected under Lamb’s Chapel, but religious “content” consisting of instruction or worship is not.
“How you draw that line is very difficult and it involves state officials in very subjective kinds of review of religious material and content,” says Nicholas P. Miller, attorney with Sidley & Austin, a law firm that filed a brief in favor of The Good News Club in the Supreme Court case. “It’s problematic for a number of reasons. The bottom line is that it involves public officials in very close screening of religious materials to decide what is viewpoint and what is religious instruction. The government becomes the censor.”
Bronx Household leaves a good deal of room for courts to effectively exclude religious groups from the use of public facilities by virtue of the “content” of their meetings. At least two circuit courts have already cited Bronx Household in recent decisions that barred religious groups from utilizing public forums.1
Not all circuit courts have adopted the distinctions set down in Bronx Household, but the ruling’s existence is seen as a threat to the rights of religious groups, which are generally made up of individuals whose taxes support the facilities they are not allowed to use.
“The Good News case presents three questions of importance to religious groups in America: Whether a policy that generally permits members of the community to use public facilities after school hours for educational, social, civic and recreational purposes, but excludes any person or group that desires to use school facilities for religious purposes, violates the First Amendment’s protection for free speech. Whether such a policy violates the First Amendment’s protection for the free exercise of religion. And whether a government policy requiring public officials to distinguish between ‘religious instruction’ and ‘discussion of moral issues from a religious viewpoint’ violates the Establishment Clause of the First Amendment.”2
The Supreme Court has traditionally granted religious speech the same protections as secular speech. In a particularly effective passage pertaining to this subject, the Court wrote in Capitol Square Review & Advisory Board v. Pinette (1995): “[The Supreme Court’s] precedent establishes that private religious speech, far from being a First Amendment orphan, is as fully protected under the Free Speech Clause as secular private expression. . . . Indeed, in Anglo-American history, at least, government suppression of speech has so commonly been directed precisely at religious speech that a free-speech clause without religion would be Hamlet without the prince.”
The issue has historically been so volatile that the First Amendment’s free speech clause requires, through the Fourteenth Amendment, that states must justify restrictions of content or viewpoint of private speech in public forums. States must show that any restrictions are “necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end.”3
Perry Education allows for modifications to this directive if the facility is used only as a limited public forum, as opposed to the traditional open public forum. However, the ruling still holds that “any attempt to regulate viewpoint in a limited public forum must be justified by a compelling state interest and must be the least restrictive means of achieving that interest.” Milford Central has so far shown no “compelling state interest” in refusing to allow religious groups to use its facilities after school hours, nor has it attempted “the least restrictive means,” since its policy has effectively banned religious groups entirely.
There is disagreement over whether Milford Central’s facilities constitute a limited public forum, as the school maintains, or a traditional, open public forum. Attorneys for The Good News Club say Milford Central has attempted to create a limited public forum by excluding only one group or form of expression—religious speech. Indeed, the school’s policy does not include any references to content exclusion except with regard to religion. Milford Central has allowed a variety of events to be held at its facilities, including political debates, fund-raising events for police and firefighter groups, Christmas programs, movie screenings, and even “moral instruction” through literature, presumably so long as the literature in question is not the Bible. Since an open public forum can be legally established through either policy or practice, it can be argued that the school established an open public forum due to its practices.
Milford Central’s policy is also quite broad. It states that its facilities may be used for “social, civic, and recreational, and entertainment events. . . . Instruction in any branch of education, learning or the arts . . . [and] meetings, entertainment events and occasions where admission fees are to be charged.” Again, no content restrictions are mentioned except with regard to religion. Attorneys have stated that a designated public forum would lose all meaning if a state was permitted to change a public forum into a limited forum simply by excluding one type of speech.
Even if Milford Central was deemed to be a limited public forum—which is open to question—the state of New York would still legally need to present a “compelling interest” to use religion as a criterion to define suitable content. Otherwise it is, arguably, discriminating against the “viewpoint” of the Good News Club and not simply the content of its meetings. After all, the Boy/Girl Scouts and 4-H Clubs deal with the same types of issues as the Good News Club, such as morality and character building. The difference is that each club has its own “viewpoint” on how to best deal with these issues, be that viewpoint secular or religious.
This matter was addressed in Church on the Rock v. City of Albuquerque (1996), in which the City of Albuquerque would not allow sectarian teaching at its city-owned senior citizen centers. It used the “viewpoint versus content” argument to defend its position. But in Church on the Rock the court ruled that “any prohibition of sectarian instruction where other instruction is permitted is inherently non-neutral with respect to viewpoint. . . . Instruction becomes ‘sectarian’ when it manifests a preference for a set of religious beliefs. . . . Because there is no nonreligious sectarian instruction (and indeed the concept is a contradiction in terms), a restriction prohibiting sectarian instruction intrinsically favors secularism at the expense of religion.”
Since Milford Central allows “instruction in any branch of education” to take place in its public forum, with the one exception of religious instruction, it can be argued that Milford Central’s “viewpoint versus content” line of reasoning is as unconstitutional as such reasoning was in Church on the Rock.
Even if there was a logical and clear way to define religion in terms of content as opposed to viewpoint, the school’s policy would still be problematic because religion is a constitutionally protected class. Can the government define lines of exclusion, even for types of speech or content, without violating the First Amendment? It’s true that in a limited public forum (providing Milford Central qualifies as such) officials can restrict speech content when regulations are “reasonable in light of the purpose served by the forum and are viewpoint neutral.” Bronx Household held that the exclusion of religious instruction and worship from public forums is “viewpoint neutral” and “reasonable,” even when the facilities are otherwise available to similar secular organizations.
But the question can be raised, could officials “reasonably” exclude African Americans from a public forum that was inclusive of all other groups? Or Irish Americans, or blind persons, or senior citizens, or any other constitutionally protected class?
In some cases, a limited public forum can open its facilities for specific groups or purposes only. For instance, it could limit its facilities to usage by youth groups only, or senior citizens, or political or civic organizations. In such cases, it would be “reasonable” to exclude groups that don’t fit within the limitations stated in its policy, such as prohibiting a senior citizens’ cooking club from using public forum facilities that are limited to youth groups only.
However, the state should not be allowed to do the opposite. That is, open a public forum with a broad policy that welcomes a variety of groups dealing with general topics, then decide to exclude only one category of speech. This is precisely what Milford Central seems to have done in its public forum policy. Since religion is a protected class, it is entitled to the highest degree of constitutional protection from laws targeting religion. Milford Central’s policy singles out religion for inferior treatment without passing the “compelling interest” test required by law. Instead it relies on the artificial distinctions laid down in Bronx Household to justify its position. But to defend Bronx Household, one must rely on cases involving government officials who are directly engaged in religious speech or prayer, or conducting religious instruction on school grounds during the school day. These cases, however, do not apply to The Good News Club, which involves a group of private individuals—nongovernment officials—engaging in religious speech in a public forum after school hours.
The Good News Club is a national organization. Its meetings are not sponsored or supported by the school and no teachers or school personnel are involved in the meetings. They are open to all children, regardless of ideology, so long as they have their parents’ consent. The meetings at Milford Central were to be held at 3:00 p.m., following the school day, when student attendance was no longer required.
“[The state’s] strongest argument is the timing of the club meetings, just after regular school activities finish at three o’clock in the afternoon,” says Miller. “They probably will argue that having the meetings so close to regular school hours gives the appearance to very young children, between the ages of 6 and 12, that [the meetings are] somehow endorsed or run by the school, and thus by the government.”
It is true that in the past the Supreme Court has treated high school students differently than college students, judging that high schoolers are more impressionable than college-age individuals. The extension of this reasoning is that the court will be even more careful when considering the impressionability of elementary school children.
“But we think that it cuts both ways,” says Miller. “If you’re allowing other community groups, which they are in this instance, the Boy Scouts, the Girl Scouts, and the 4-H Clubs, to meet and use the space, then to deny the same privileges to the Bible club, sends a message of hostility. The young age of the kids [implies an equally strong possibility] that they’re going to misunderstand and [determine that] the government somehow disapproves of religion and religious activity. We should be equally concerned with this issue.”
The establishment clause prohibits the state from endorsing or showing hostility toward religion, but between the two, the latter may be of greater concern since hostility toward religion is not only prohibited by the establishment clause, but also by the free exercise and free speech clauses.
According to the ruling in Board of Education v. Mergens (1990), which also quotes McDaniel v. Paty (1978): “If a state refused to let religious groups use facilities open to others, then it would demonstrate not neutrality but hostility toward religion. ‘The establishment clause does not license government to treat religion and those who teach or practice it, simply by virtue of their status as such, as subversive of American ideals and therefore subject to unique disabilities’.”
In addition to its possible breach of the establishment clause, Bronx Household may also be in violation of the free exercise clause—“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”—since Bronx Household specifically targets religion for inferior treatment. A neutral law that can be justified by a “reasonable” government purpose, even if that law burdens religious practice, is generally applicable. However, “A law that targets religious conduct for distinctive treatment or advances legitimate governmental interests only against religiously motivated conduct will survive strict scrutiny only in the rarest cases.”4
In the Good News case, Milford Central’s policy directly targets religion, stating: “School premises shall not be used by any individual or organization for religious purposes.” Since Milford Central has not attempted a compelling state interest justification, nor explored less restrictive means, it can feasibly be argued that its policy violates the free exercise rights of The Good News Club.
Finally, while the establishment clause was written to prevent the entanglement of church and state, attorneys for the Good News Club argue that Bronx Household does anything but—in fact, it creates entanglement by forcing the state, in this case the officials at Milford Central, to define the often nebulous distinction between religious viewpoint and religious instruction or worship. It also raises the frightening prospect of having a state official on hand at every qualifying meeting to enforce compliance with the law—just in case someone decides to sing an illegal gospel song or utter an illicit “Amen.”
“Presently the government has to distinguish between religion and non-religion because it has an obligation not to advance religion,” says Miller. “So it has to know what religion is and be able to define it. But Bronx Household goes beyond that and has the government making distinctions within religious activity and conduct and speech itself. I find that highly troubling.”
Will the Supreme Court agree? “I think it will,” says Miller. “The reason I’m quite confident is that this case is very similar to Lamb’s Chapel. It’s a bit different—[that case dealt with] a public high school and not an elementary school—but the court ruled 9-0 in Lamb’s Chapel that you cannot exclude religious activities when you have similar kinds of secular activities taking place in the facilities.”
The hope is that the Court will overturn the Bronx Household ruling of the lower court and reiterate the principles set down in Lamb’s Chapel.
“We think for the court to resolve this case fairly they need to overturn the Bronx Household rule,” Miller continues. “Frankly, if the rule isn’t overturned, it could be very troubling for religious people and churches. Currently the Bronx Household rule is only in a couple of circuits in about seven or eight states, but if it’s upheld I would foresee it spreading rapidly to other states because [officials] don’t have to worry about establishment clause issues. They can just set down a hard and fast rule that says, basically, no church groups allowed.”
*During production of this issue, word came through that the Supreme Court ruled 6-3 that public schools may not discriminate against student clubs simply because they are of a religious nature.
FOOTNOTES
1 DeBoer v. Village of Oak Park (1999) and Campbell v. St. Tammany’s School Board (2000).
2 From the Brief of the Baptist Joint Committee on Public Affairs as Amici Curiae in Support of Petitioners.
3 Perry Education Association v. Perry Local Educator’s Association, (1983).
4 Church of the Lukumi Babulu Aye, Inc., v. City of Hiaheah (1993).
Faith Avery writes from Los Angeles, California.
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