Good News Case Amicus Brief


No. 99-2036













On Writ of Certiorari to the United States

Court of Appeals for the Second Circuit







Richard W. Garnett
Notre Dame Law School
Notre Dame, Indiana 46556
(219) 631-6981 4208
Nathan J. Diament
Institute for Public Affairs
Union of Orthodox Jewish Congregations
of America
1640 Rhode Island Avenue, NW
Washington, DC 20036
(202) 857-2770
Carl H. Esbeck*
Center for Law and Religious Freedom
Evergreen Lane, Suite 222
Annandale, Virginia 22003
(703) 642-1070

*Counsel of Record



Table of Contents

Table of Authorities

Statement of Interest of Amici Curiae

Statement of the Case

Summary of the Argument


    I. The First Amendment Does Not Permit Government Officials to Draw and Enforce Distinctions Between "Worship and Religious Instruction" and All Other Forms of Religious Speech.
    A. The Establishment Clause Does Not Permit Officials to Classify Per Religious Categories Religious Words, Practices and Events .
    B. The Free Exercise Clause Also Denies Government Officials Authority to Interpret the Religious Meaning of Religious Practices. C. The Milford Use Policy Embroils School Officials in Unconstitutional Line-Drawing. II. The Establishment Clause Cannot Supply the "Compelling Governmental Interest" Required to Preempt the Free Speech Clause III. The Use Policy Intentionally Discriminates on the Basis of Religion and Therefore Violates the Free Exercise Clause

    IV. That School Officials Had No Animus Toward The Good News Club or Its Message Is Irrelevant






Abington Sch. Dist. v. Schempp, 374 U.S. 203 (1963)
Basich v. Board of Pensions, 540 N.W.2d 82 (Minn. Ct. App. 1995)
Board of Educ. of Westside Community Schools v. Mergens, 496 U.S. 226 (1990)
Bob Jones Univ. v. United States, 461 U.S. 574 (1983)
Bronx Household of Faith v. Community School Dist. No. 10, 127 F.3d 207 (2d Cir. 1997)
Cantwell v. Connecticut, 310 U.S. 296 (1940)
Campbell v. St. Tammany Parish School Board, 2000 WL 1597749 (5th Cir. 2000) (per curiam) (denying rehearing en banc)
Capitol Square Review and Advisory Board v. Pinette, 515 U.S. 753 (1995)
Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993)
Consolidated Edison v. Public Service Comm’n, 447 U.S. 530 (1980)
Corporation of Presiding Bishop v. Amos, 483 U.S. 327 (1987)
County of Allegheny v. Greater Pittsburgh ACLU, 492 U.S. 573 (1989)
Downs v. Roman Catholic Archbishop, 683 A.2d 808 (Md. Ct. Spec. App. 1996)
Edwards v. Aguillard, 482 U.S. 578 (1987)
EEOC v. Catholic Univ. of Am., 83 F.3d 455 (D.C. Cir. 1996)
Elrod v. Burns, 427 U.S. 347 (1976)
Employment Div. v. Smith, 494 U.S. 872 (1990)
Engel v. Vitale, 370 U.S. 421 (1962)
Epperson v. Arkansas, 393 U.S. 97 (1968)
Farley v. Wisconsin Evangelical Lutheran Synod, 821 F. Supp. 1286 (D. Minn. 1993)
Fowler v. Rhode Island, 345 U.S. 67 (1953)
Gabriel v. Immanuel Evangelical Lutheran Church, Inc., 640 N.E.2d 681 (Ill. App. Ct. 1994)
Geraci v. Eckankar, 526 N.W.2d 391 (Minn. Ct. App. 1995)
Gibson v. Brewer, 952 S.W.2d 239 (Mo. 1997)
Heffron v. International Soc’y of Krishna Consciousness, 452 U.S. 640 (1981)
Himaka v. Buddhist Churches of Am., 917 F. Supp. 698 (N.D. Cal. 1995)
In re Pleasant Glande Assembly of God, 991 S.W.2d 85 (Tex. Ct. App. 1998)
Kedroff v. St. Nicholas Cathedral, 344 U.S. 94 (1952)
Klagsbrun v. Va’ad Harabonim of Greater Monsey, 53 F. Supp.2d 732 (D.N.J. 1999)
Korean Presbyterian Church v. Lee, 880 P.2d 565 (Wash. Ct. App. 1994)
Kreshik v. St. Nicholas Cathedral, 363 U.S. 190 (1960)
L.L.N. v. Clauder, 563 N.W.2d 434 (Wis. 1997)
Lamb’s Chapel v. Center Moriches Union Free Sch. Dist., 508 U.S. 384 (1993)
Larson v. Valente, 456 U.S. 228 (1982)
Lee v. Weisman, 505 U.S. 577 (1992)
The Legal Tender Cases, 79 U.S. (12 Wall.) 457 (1870)
Lyng v. Northwest Indian Cemetery Protective Ass'n, 485 U.S. 439 (1988)
Maryland & Va. Churches of God v. Church at Sharpsburg, 396 U.S. 367 (1970)
McDaniel v. Paty, 435 U.S. 618 (1978)
McEnroy v. St. Meinrad School of Theology, 713 N.E.2d 334 (Ind. App. 1999)
Pearson v. Church of God, 458 S.E.2d 68 (S.C. Ct. App. 1995)
Presbyterian Church v. Hull Mem'l Presbyterian Church, 393 U.S. 440 (1969)
Rosenberger v. Rector and Visitors of the University of Virginia, 515 U.S. 819 (1995)
Santa Fe Indep. Sch. Dist. v. Doe, 120 S. Ct. 2266 (2000)
Serbian East. Orthodox Diocese v. Milivojevich, 426 U.S. 696 (1976)
Simon & Schuster, Inc. v. New York State Crime Victims Board, 502 U.S. 105 (1991)
Smith v. Clark, 709 N.Y.S.2d 354 (Sup. Ct. 2000)
Stone v. Graham, 449 U.S. 39 (1980) (per curiam)
Thomas v. Review Bd., 450 U.S. 707 (1981)
Tidman v. Salvation Army, 1998 WL 391765 (Tenn. Ct. App. 1998)
United States v. Ballard, 322 U.S. 78 (1944)
United States v. Lee, 455 U.S. 252 (1982)
Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464 (1982)
Van Osdol v. Vogt, 908 P.2d 1122 (Colo. 1996)
Wallace v. Jaffree, 472 U.S. 38 (1985)
Walz v. Tax Comm'n, 397 U.S. 664 (1970)
Watson v. Jones, 80 U.S. (13 Wall.) 679 (1872)
Welsh v. United States, 398 U.S. 333 (1970)
Westside Bd. of Educ. v. Mergens, 496 U.S. 226 (1990)
Widmar v. Vincent, 454 U.S. 263 (1981) 

Constitutional Provisions and Statutes


U.S. Const. Amend. I passi

Other Authorities

Stephen L. Carter, God’s Name in Vain: The Rights and Wrongs of Religion in Politics (2000)
The Complete Artscroll Siddur 18 (1985)
William Clancy, Religion as a Source of Tension, in Religion and the Free Society (1958)
James Davison Hunter, Culture Wars: The Struggle to Define America (1991)
Richard John Neuhaus, Civil Religion or Public Policy, First Things (Dec. 2000)
Jack N. Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution (1997)
Max L. Stackhouse, Religion, Rights, and the Constitution, in An Unsettled Arena: Religion and the Bill of Rights (Ronald C. White, Jr. & Albright G.Zimmerman eds., 1990)
The Founders’ Constitution (Philip B. Kurland & Ralph Lerner, eds. 1987)



Amicus Curiae Christian Legal Society is a nonprofit interdenominational association of over 4,000 Christian attorneys, law students, judges, and law professors.

Amicus Curiae Union of Orthodox Jewish Congregations of America is a nonprofit organization representing nearly 1,000 Orthodox Jewish congregations throughout the United States. Without reservation, Amici, Christian and Jew, join in this brief urging the juridical and moral imperative that religious speech and practice not be the object of intentional discrimination by government.

A more detailed statement of interest of Amici is set forth in the Appendix. Letters from the parties consenting to the filing of this brief have been filed with the Clerk of the Court pursuant to Rule 37.3.



This is a case about discrimination against religious expression and religious practice. Although this Court has affirmed, time and again, that government is not required—and, indeed, is not permitted—to single out religious speech or religious exercise for disadvantage, that is precisely what has happened in this case, and in two ways: First, the Milford Central School’s Community Use Policy, adopted pursuant to New York statute, expressly prohibits "any individual or organization" from using school facilities for "religious purposes" (Pet. D2); and second, the application of the Policy invites government officials to devise and enforce a distinction between different forms of religious expression—between the discussion of morals and values from a religious viewpoint, on the one hand, and morals and values through religious instruction, on the other (Pet. A16, C15).

At the center of this matter is a public access policy that permits residents to use school facilities for "social, civic and recreational meetings and entertainment events and other uses pertaining to the welfare of the community, provided that such uses shall be nonexclusive and shall be open to the general public." Pet. A2-A3. Such policies make good sense and serve the common good. By opening public property to private groups, these policies support, in a neutral and non-intrusive way, the web of mediating institutions and voluntary associations—the "little platoons" of democracy—that is so essential to a diverse and thriving civil society.

That said, the Milford Use Policy falls short of its lofty potential in that it does not permit all "uses pertaining to the welfare of the community." Rather, it excludes from school premises all those who seek to promote the "welfare of the community" through activities that, in the minds of government officials, have "religious purposes." Pet. A3. Thus, the question here is whether "to exclude the Good News Club because it teaches morals and values from a Christian perspective constitutes unconstitutional viewpoint discrimination." Pet. A12. The answer to that question is "yes."



The parties agree that Milford’s Community Use Policy creates a limited public forum. See, e.g., Pet. A13 ("We think it clear that the Community Use Policy has created a limited public forum in the Milford school facilities."). And the parties agree that any content restrictions in such fora must be "viewpoint neutral" and constitutionally "reasonable." Pet. A14 & n.8 ("If the Club’s use is not a ‘religious use’ but merely the teaching of morals from a religious viewpoint, . . . Milford’s . . . Use Policy would be unconstitutional viewpoint discrimination."). The disagreement involves a building access policy that permits groups to use school facilities to "benefit the welfare of the community," to "promote the morals of children," and to "instruct in any branch of education, learning or the arts," but expressly excludes speakers whose purposes are "too religious" in the estimate of government officials.

This Policy, and the application of it in this case, are unconstitutional. Neither the opinion below, nor the Second Circuit’s Bronx Household of Faith v. Community School Dist. No. 10, 127 F.3d 207 (2d Cir. 1997), on which the appeals court relied, can be reconciled with this Court’s decisions in Lamb’s Chapel v. Center Moriches Union Free Sch. Dist., 508 U.S. 384 (1993); Rosenberger v. Rector & Visitors of the University of Virginia, 515 U.S. 819 (1995); and Widmar v. Vincent, 454 U.S. 263 (1981). Amici endorse fully the argument that Milford’s Policy constitutes viewpoint discrimination in violation of the Free Speech Clause of the First Amendment. See, e.g., Pet. 16-20; Brief for Amici Curiae, the States of Alabama, et al., in Support of Petition for Writ of Certiorari, at 2-12. Judge Jacobs, in dissent below, put the matter well: "When the subject matter is morals and character, it is quixotic to attempt a distinction between religious viewpoints and religious subject matters[,]" Pet. A22, and "[w]henever public officials . . . evaluate private speech ‘to discern [its] underlying philosophic assumptions respecting religious theory and belief,’ the result is ‘a denial of the right of free speech.’" Pet. A28 (quoting Rosenberger, 515 U.S. at 845).

Our goal in this brief Amici Curiae is to supplement Petitioners’ powerful arguments under the Free Speech Clause with four additional points. First, the Second Circuit’s attempt to identify a line between a discussion of "morals from a religious viewpoint," on the one hand, and "morals through religious instruction," on the other—between expression that is "too religious to be merely incidental" to secular subjects and expression that is "secular enough"—not only runs afoul of the Free Speech Clause but violates the Establishment and Free Exercise Clauses as well. Courts and other government officials have neither the competence nor the authority to identify the point at which private expression crosses an imagined Rubicon of religiosity separating religious "viewpoints" on "secular" subjects—such as "morals"—from religious instruction, worship, or assertions that "morality" is in fact an inherently religious subject. To search for that line, and to police it, is to assume the task of enforcing a particular orthodoxy and to entangle government in matters from which it is constitutionally excluded. See, e.g., Widmar, 454 U.S. at 272 n.11 ("We agree . . . that the University would risk greater ‘entanglement’ by attempting to enforce its exclusion of ‘religious worship’ and ‘religious speech.’ . . . Initially, the University would need to determine which words and activities fall within ‘religious worship and religious teaching.’ This alone could prove ‘an impossible task in an age where many and various beliefs meet the constitutional definition of religion.’") (citations omitted).

Second, Milford’s vague fear that treating the Good News Club like other community youth groups might send a "message" of exclusion to impressionable children is both groundless and irrelevant. In crediting this fear, and in concluding that Milford acted "reasonably" in using this fear as an excuse for excluding "religious instruction" from its facilities, the Second Circuit implicitly endorsed the mistaken premise that the Free Speech Clause and the Establishment Clause are somehow in "conflict" and that concern for the latter Clause thereby preempts the former. Given this premise, Milford’s unfounded scruples about "offending" the Establishment Clause are said to warrant infringing on the free-speech rights of the Good News Club. This makes no sense. Because the Free Speech Clause prohibits government from discriminating against religious viewpoints, the Establishment Clause cannot logically require (or excuse) such discrimination. Rather than conflict, the Clauses work in an independent, but complimentary, fashion, each protecting religious freedom by limiting government.

Third, the Policy is facially unconstitutional because it excludes groups seeking to engage in religious worship and instruction—"religious purposes"—from public facilities while permitting others to use the facilities for non-religious purposes. Not only is this discriminatory treatment not required by the Establishment Clause, it is not permitted by the Free Exercise Clause. A policy that permits community groups to use public facilities for private activities that pertain to the "welfare of the community" but targets for exclusion those groups whose activities have "religious purposes," intentionally discriminates against, and is thereby censorious of, religious exercise.

Finally, and briefly, Amici emphasize that Milford’s Policy, and its application here, are unconstitutional whether or not any government official opposed or disagreed with the Club’s message. In this area, the government does not need to act invidiously to act unconstitutionally.


I. The First Amendment Does Not Permit Government Officials To Draw and Enforce Distinctions Between "Worship and Religious Instruction" and All Other Forms of Religious Speech

The Second Circuit held that government officials may, in the regulation of a limited public forum, distinguish religious instruction, prayer, and worship from "discussion of secular subjects such as child rearing, development of character, and development of morals from a religious perspective," Pet. A10, and may exclude the former while permitting the latter. Moreover, the appeals court was quite untroubled by the prospect of school officials engaging in the task of marking the metes ‘n bounds of "worship" in America or divining the line between "religious purposes" and all other religious discussion. In the court’s view, it is "‘not difficult for school authorities to make’ the distinction between the discussion of secular subjects from a religious viewpoint and the discussion of religious materials through religious instruction and prayer." Pet. A16 (quoting Bronx Household, 127 F.3d at 215). Accord Campbell v. St. Tammany Parish School Board, 2000 WL 1597749, at *4 (5th Cir. 2000) (per curiam) (denying rehearing en banc) ("A religious service is an activity, a manner of communicating which carries a very special and distinct meaning in our culture. While a service may express a religious viewpoint, for example, a Catholic mass featuring a prayer for the welfare of the unborn and for the reform of American abortion law, the distinction is between medium and message. . . . [T]hus, a Catholic group could assemble on school property to discuss a Christian anti-abortion viewpoint and distribute . . . material advocating a Christian anti-abortion viewpoint. They would only run afoul of the policy if they also chose to conduct religious services.").

The appeals court was mistaken. It is difficult for minor local officials to make this distinction, and impossible for them to make it without engaging in constitutionally forbidden theologizing. To do so, these officials must scrutinize not only the character of a religious group but also the nature of that group’s planned expression, programs, and activities. Their inquiry is necessarily complicated by our Nation’s ethnic and geopolitical diversity—e.g., school districts, large and small, are inner-city, suburban, and rural—and by the Nation’s unique combination of high religiosity and increasing religious pluralism. What strikes one minor official as "religious" or "secular" will inevitably vary from place to place and from person to person. What will seem "too religious" to one school employee—because of variations in background, experience, religious devotion, or lack thereof—strike another as "incidental to worship or secular enough."

Thankfully, though, the line drawn by Milford is one that the Establishment Clause does not permit, let alone require. Nearly twenty years ago, when a dissenting opinion urged a distinction between "religious worship" and other forms of religious expression, an eight-Justice majority of this Court refused, observing that "the distinction [lacked] intelligible content," that it was "highly doubtful that [the distinction] would lie within the judicial competence to administer," and that, in any event, the proposed distinction was constitutionally irrelevant. Widmar, 454 U.S. at 269 n.6 (1981). Indeed, the Widmar majority stated that the proposed categorization of religious expression was not only unintelligible and unnecessary, it was unconstitutional. Id. ("Merely to draw the distinction would require the university—and ultimately the courts—to inquire into the significance of words and practices to different religious faiths, and in varying circumstances by the same faith. Such inquiries would tend inevitably to entangle the State with religion in a manner forbidden by our cases."); see also id. at 271 n.9, 272 n.11.

The Establishment Clause Does Not Permit Officials To Classify Per Religious Categories Religious Words, Practices, And Events.

Milford’s Policy prohibits the use of school buildings by community groups for "religious purposes," including "worship" and "religious instruction" (Pet. A9, A10). Thus, the Policy requires local officials to keep out "praise songs or biblical lessons," for example, while permitting discussions of "otherwise secular subject[s]" from a religious perspective. This kind of screening inevitably embroils educational employees in the messy business of testing private expression for undue religiosity, and purging excessively devout, or insufficiently inclusive, expression. And, invariably, the Policy’s invitation to petty officials to separate the "too religious" from the "secular enough" requires government—including, eventually, the courts—to investigate, probe, and dissect the nature and practices of community-based youth organizations, to glean these practices’ religious significance, and to ascribe spiritual meaning (or lack thereof) to private actors’ words and activities. But, of course, for a court to conclude that a particular form of expression or subject of discussion has (or lacks) metaphysical meaning is to make determinations that are religious.

In Fowler v. Rhode Island, 345 U.S. 67 (1953), this Court faced an ordinance that was, in a sense, the reverse of the Milford Policy. In Fowler, a city permitted churches and similar religious bodies to conduct worship services in its parks, but religious meetings were excluded. The ordinance resulted in the arrest of a Jehovah’s Witness as he conducted a peaceful meeting. Justice Douglas, in an opinion from which no Justice dissented, overturned the conviction because the distinction between "worship" and an "address" on religion was inherently a religious question and invited discrimination:

Appellant’s sect has conventions that are different from the practices of other religious groups. Its religious service is less ritualistic, more unorthodox, less formal than some. . . . Nor is it in the competence of courts under our constitutional scheme to approve, disapprove, classify, regulate, or in any manner control sermons delivered at religious meetings. . . . To call the words which one minister speaks to his congregation a sermon, immune from regulation, and the words of another minister an address, subject to regulation, is merely an indirect way of preferring one religion over another.

Id. at 69-70. Officials in Milford are no more competent to include a "religious perspective" but exclude "worship" than were the officials in Fowler competent to include worship while excluding a religious address. Both efforts entangle government in theological classification, and both invite covert religious bigotry.

Inquiries by government functionaries into the spiritual significance of a religious organization’s programs and solemn observances undermine an important aim of the separation of church and state, namely, keeping government within its sphere of competence, to the purpose of maintaining both the legitimacy of the state and the integrity of religion. It is for this reason that this Court has consistently, and quite sensibly, refused to permit government officials to classify per religious categories a religious organization’s words, practices, and events. Similar concerns, and a similar recognition of government’s lack of competence in theological matters, have animated those decisions holding that the courts lack subject-matter jurisdiction over intra-church disputes involving religious questions. Indeed, judicial forbearance about overstepping bounds extends to all civil and criminal litigation—intra-religious or not—that turns on matters of faith, whether these cases involve claims sounding in tort, breach of contract, civil-rights and employment legislation, or criminal fraud.

Similar caution is warranted here. After all, judge-made classifications of expression along the lines of "worship and religious instruction" versus "religious speech on secular subjects" are no less hazardous to administer than those that this Court has refused to draw in these other contexts. There is simply no way to avoid the fact that theologically "liberal" or latitudinarian private speech will often appear to minor local officials as "secular enough," and thus acceptable in school facilities, whereas theologically "conservative" or orthodox organizations will more likely be regarded as "too sectarian," and thus deserving of exclusion from public spaces. This kind of unequal treatment is a paradigmatic violation of the First Amendment. Larson v. Valente, 456 U.S. 228, 244 (1982) ("The clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another."). A more discriminatory rule than one that privileges some theological traditions over others could hardly be devised.

The Free Exercise Clause Also Denies Government Officials Authority To Interpret the Religious Meaning of Religious Practices.

The foregoing is well established Establishment Clause doctrine. But this Court has also rebuffed government efforts to decide religious questions, or to interfere in religious affairs, in Free Exercise Clause cases. For example, this Court has made clear that religious beliefs and practices are constitutionally protected whether or not they are "central" to a religious person’s faith. This is because, again, public officials are simply not competent to decide which practices are at the "core" of a particular religious tradition and which are peripheral. For similar reasons, religious doubters and backsliders are protected by the Free Exercise Clause no less than those who are orthodox or firm in their faith. Here too, the cases reflect the fundamental insight that civil officials have no juridically intelligible means for resolving doctrinal disputes, or gauging the degree of a claimant’s religious fervency, or identifying theologically correct positions. As this Court has observed, "it is not within the judicial function and judicial competence to inquire whether the petitioner or his fellow worker more correctly perceived the commands of their common faith.

The Milford Use Policy Embroils School Officials in Unconstitutional Line-Drawing.

The "too religious/secular enough" test invited by the Milford Policy, and applied by the court below, casts school employees adrift in the same uncharted waters as would tackling the questions that this Court has consistently avoided in a wide range of First Amendment cases. We emphasize, however, that the problem here is not that government officials are simply interacting with religious organizations. Some regulatory interaction—indeed, some adjustments and cooperation—between government and religious organizations is inevitable, given that government keeps getting bigger and society more complex. Indeed, such interaction can on occasion be mutually beneficial. After all, religious institutions have always played a vital role in promoting the common good, in delivering health care and in administering charitable programs, often in collaboration with government. Thus, Amici’s argument here is not that the inevitable and unremarkable regulation that affects the operation of religious organizations necessarily invades the "privacy" of religious groups. Rather, we object to a government effort to exceed its constitutionally limited powers by adjudicating subject matters reserved to the sole cognizance of religion and religious organizations—matters that were, using Professor Rakove’s apt term, "deregulated" at the Nation’s founding.

School officials are not competent to scour the organic charters, programs, lesson books, songs, games, and planned expression of community-based groups, such as the Good News Club, for evidence of excessive religiosity. But the Milford Policy requires exactly this kind of administrative—and eventually judicial—inquiry into the mission and motivations of the "too religious" organizations, so as to separate them from the "mostly secular" organizations. Such bureaucratic rummaging might well uncover all kinds of religion-related "facts," but local school officials—and they will be the first to admit as much—lack the training, experience, and theological insight to determine the significance of these facts. To invite petty officials to engage in this kind of inquiry and religious classificaton can only lead to misunderstanding, insensitivity, and even outright sectarian bigotry.


The Establishment Clause Cannot Supply the "Compelling Governmental Interest" Required To Preempt the Free Speech Clause

Although the Second Circuit asserted that it was "eminently reasonable" to exclude the Good News Club from Milford facilities (Pet. A15), the court did not hold that the Establishment Clause justified or required this exclusion. However, in its Brief in Opposition to the Petition for a Writ of Certiorari, Respondent advanced precisely this claim. See, e.g., Opp. 9 ("Petitioner’s intended use of Respondent’s facilities violates the First and Fourteenth Amendments by forcing Respondent to endorse Christianity over all other religions and over no religion at all.").

This argument should be rejected, as should its premise, namely, that compliance with the restraints of the Establishment Clause supplies the "compelling governmental interest" to trump what would otherwise be a violation of the Free Speech Clause. This "conflict-between-the-Clauses" makes no sense.

During the last twenty years, this Court has held consistently that religious expression by private individuals is entitled to the same protection afforded political, artistic, and educational expression. In many of these cases, those seeking restrictions on religious speech painted a picture of conflicting First Amendment Clauses: a right under the Free Speech Clause to religious expression without discrimination, on the one hand, and an Establishment Clause command that government not aid religion by permitting use of public property, on the other. Having framed the issue this way, these litigants invited this Court to "balance" the Clauses’ commands and to suppress the private speech.

In Capitol Square Review and Advisory Board v. Pinette, 515 U.S. 753 (1995), for example, the State of Ohio had created a public forum by allowing citizens to erect temporary displays symbolizing each group’s message. But when the Ku Klux Klan sought permission to erect a Latin cross during the Christmas season, state officials balked. The Klan then sued to vindicate its free-speech rights. This Court rejected the state’s argument that the Establishment Clause justified or required silencing the Klan’s speech. Because the Establishment Clause was not violated by the presence of the cross, the state was ordered to permit the religious display on the same basis as all other citizen displays. Id. at 762-70.

Although the Pinette Court re-affirmed that private religious speech is protected by the Free Speech Clause from discrimination, in dicta it also indicated that, in another case presenting different facts, the Establishment Clause might well require the suppression of private religious speech. Id. at 761-62. This makes no sense, and this Court should reject any invitation to use the Establishment Clause as a sword driving private religious expression from the marketplace of ideas.

First, even if there were a "clash" between the Establishment Clause and the Free Speech Clause—and it is not—why resolve the conflict by tipping the "balance" in favor of no-establishment? The courts could just as easily—and no less arbitrarily—conclude that the duty to comply with the Free Speech Clause requires cutting back on no-establishment. There is no principled way for courts to rank order the protections in the First Amendment, or to award no-establishment a better place in line than free speech or vice versa. There is, however, the real danger that judges—who are not hostile to religion so much as they are without expertise in the subject—will more often than not "balance" matters in a way that either misunderstands or trivializes matters of faith.

Second, the Clauses are not in conflict. Neither the Free Speech Clause nor the Establishment Clause, when ratified in 1791, delegated new powers to Congress (or, for that matter, the Executive or Judiciary). Quite the contrary: these provisions limited those powers previously granted. That is, the Free Speech Clause and the Establishment Clause are both "negatives" on, or subtractions from, the government’s power. While the Clauses can overlap and reinforce one another, two "negatives" on governmental power can never logically conflict.

Third, the Establishment Clause restrains government and government alone. Private actors cannot violate the Clause, because it does not regulate their conduct or expression. Thus, in any free speech case involving religion, the first question to ask is whether the speech in question is government speech or private speech. If the speech is government speech (or private speech adopted by the government), and its content is inherently religious, then—clearly—the Establishment Clause prohibits the speech. This is borne out in the case law dealing with school prayer, devotional Bible reading in school, teaching the biblical account of creation as science, civic veneration of the Ten Commandments, and the like.

On the other hand, not only is private speech not restrained by the Establishment Clause, the Free Speech and Free Exercise Clauses affirmatively protect the speech. See, e.g., Board of Educ. of Westside Community Schools v. Mergens, 496 U.S. 226, 250 (1990) (opinion of O’Connor, J.) ("[T]here is a crucial difference between government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Speech and Free Exercise Clauses protect.") (emphasis in original).

Logically there can be no "conflict-in-the-Clauses." Instead, the various Clauses work together to safeguard religious freedom by protecting private expression while restraining government coercion and intrusion into religious matters.


The Use Policy Intentionally Discriminates On the Basis of Religion and Therefore Violates the Free Exercise Clause

Milford insists it must exclude "worship and religious instruction" from the limited public forum. The discrimination is required, Milford contends, either by reason of the Establishment Clause or simply to honor the community’s desire for a clear demarcation between church and state. See, e.g., Brief in Opp. 9 ("Petitioners’ intended use of Respondent’s facilities violates the First and Fourteenth Amendments by forcing Respondent to endorse Christianity over all other religions and over no religion at all."). This cannot be the law, for both of these rationalizations are at odds with the Free Exercise Clause. The Free Exercise Clause prohibits intentional discrimination by government against a particular religion or religion in general, as well as discrimination that disfavors particular religious practices. Milford’s policy excludes speech and related practices thought by school officials to be "worship or religious instruction" and is therefore a textbook example of intentional discrimination. Accordingly, the Policy can be justified only upon a showing that the burden is necessary to satisfy a compelling governmental interest.

The Second Circuit did not consider whether the Policy violated the Free Exercise Clause. The free-exercise question, of course, had already been foreclosed by the decision in Bronx Household, supra. In that case, the Second Circuit held that the discrimination in the New York statute did not make out a prima facie case under the Free Exercise Clause:

    [The speech exclusion did] not bar any particular religious practice. [It does] not interfere in any way with the free exercise of religion by singling out a particular religion or imposing any disabilities on the basis of religion. The members of the Church here are free to practice their religion, albeit in a location separate from [the school building.] "The free exercise of religion means, first and foremost, the right to believe and profess whatever religious doctrine one desires." Smith, 494 U.S. at 877. That right has not been taken from the members of the Church.

Id. at 216. In other words, in the view of the Bronx Household panel, so long as the school does not ban a religious practice at all times and all places, the school is free and clear. It would mean the Clause prevents nothing short of a national effort to outlaw a religious group or a campaign to completely ban a central tenet of the faith. Such a rule would drain the Free Exercise Clause of all meaning. The government will not be heard to say a citizen has no First Amendment right merely because the right can be exercised at another time or place free of molesting officials.


That School Officials Had No Animus Toward the Good News Club Or Its Message Is Irrelevant

Neither the Second Circuit nor the District Court considered the motives of the officials who adopted and applied Milford’s Policy, and Petitioner did not allege bad faith or invidious intent on Milford’s part. Still, in light of the Fifth Circuit’s recent per curiam order denying rehearing en banc in Campbell v. St. Tammany Parish School Board, supra, it is worth emphasizing that no such proof is required.

Campbell involved a challenge to a school policy similar to the one at issue here. St. Tammany’s policy permitted "civic and recreational meetings and entertainment and other uses pertaining to the welfare of the community" but excluded "religious services or religious instruction." Id. 2000 WL 1597749 at *1; see also Campbell v. St. Tammany’s School Board, 206 F.3d 482, 484 (5th Cir. 2000). In its per curiam opinion, the Fifth Circuit insisted that the policy "is not viewpoint discriminatory," 2000 WL 1597749 at *3, relying on the same distinction employed by the Second Circuit "between prohibiting religious services and prohibiting expression from a religious viewpoint[,]" id. at *4; see also 206 F.3d at 487 ("Religion may be either a perspective on a topic such as marriage or may be a substantive activity in itself."). Indeed, the Fifth Circuit asserted that "[t]he policy’s express tolerance of discussion from a religious viewpoint rebuts any inference of viewpoint discrimination." 2000 WL 1597749 at *3.

Again, like the Second Circuit below, the court in Campbell was confident that the policy was "supported by rational reasons[.]" Id. It added, however, that "[e]specially where, as here, the school district has affirmative evidence that its motive was not viewpoint discrimination, such reasons need only be rational." Id.; see also id. at *5 ("[T]here is no evidence that [the Parish’s] efforts to create a limited public forum or its application of its rules are a pretext for viewpoint-based discrimination."), id. at * 3 n.19 ("The provisions of St. Tammany’s policy that expressly permit discussion of religious viewpoints provide affirmative evidence that the policy is not driven by viewpoint discrimination.").

The Fifth Circuit was mistaken when it suggested in Campbell that a failure to allege or prove invidious motive behind the discrimination prejudiced the claim that the policy violated the Free Speech Clause. As this Court observed in Simon & Schuster, Inc. v. New York State Crime Victims Board, 502 U.S. 105 (1991), the controlling cases "have consistently held that ‘[i]llicit legislative intent is not the sine qua non of a violation of the First Amendment.’ . . . [A plaintiff] need adduce ‘no evidence of an improper censorial motive.’ . . . As we [have] concluded [elsewhere]: ‘We have long recognized that even regulations aimed at proper government concerns can restrict unduly the exercise of rights protected by the First Amendment.’" Id. at 117 (citations omitted). By the same token, this Court should not treat Milford’s presumed good faith in drafting and applying its Policy as being relevant to Petitioner’s argument that Milford’s Policy is unconstitutional.



For all the foregoing reasons, Amici urge this Court to reverse the judgment of the court below.


Respectfully submitted,

Carl H. Esbeck
Counsel of Record

    Center for Law and Religious Freedom

4208 Evergreen Lane, Suite 222
Annandale, Virginia 22003
(703) 642-1070

November 30, 2000



Statements of Interest of Amici


The Christian Legal Society, founded in 1961, is a nonprofit interdenominational association of Christian attorneys, law students, judges, and law professors with chapters in nearly every state and at over 145 accredited law schools. Since 1975, the Society's legal advocacy and information division, the Center for Law and Religious Freedom, has worked to safeguard religious belief and practice, as well as preserving the autonomy of religious organizations, in the Supreme Court of the United States and in state and federal courts throughout this nation.

The Center strives to protect religious exercise in order that men and women might be free to do God's will. Using a network of volunteer attorneys and law professors, the Center provides information to the public and the political branches of government concerning the interaction of law and religion. Since 1980, the Center has filed briefs amicus curiae in defense of individuals, Christian and non-Christian, and on behalf of religious organizations in virtually every case before the U.S. Supreme Court involving church/state relations.

The Christian Legal Society's national membership, years of experience, and available professional resources enable it to speak with authority upon religious freedom matters before this Court.

The Union of Orthodox Jewish Congregations of America (the "U.O.J.C.A.") is a non-profit organization representing nearly 1,000 Jewish congregations throughout the United States. It is the largest Orthodox Jewish umbrella organization in this nation. Through its Institute for Public Affairs, the U.O.J.C.A. researches and advocates legal and public policy positions on behalf of the Orthodox Jewish community. The U.O.J.C.A. has filed, or joined in filing, briefs with this Court in many of the important cases which affect the Jewish community and American society at large.

Of particular relevance to this case, the U.O.J.C.A. is the parent organization of the National Conference of Synagogue Youth ("NCSY"). One of the world’s most successful Jewish youth movements, NCSY provides educational, religious and social programming for over 40,000 American teenagers annually through weekend retreats, summer trips and after-school clubs. NCSY’s mission is one that is religious, but invites any Jewish teen, regardless of their level of affiliation or observance, to participate. Clearly, this case will have a substantial impact upon the ability of NCSY to serve high school students throughout the United States; it will determine what elements of Jewish tradition and thought NCSY may include in its after-school programming should it wish to conduct such programming on public school grounds.

But the significance of this case to the American Orthodox Jewish community goes beyond the realm of youth programming to the ability of our community to grow and flourish for our adults as well. Due to the centrality of communal prayer in Jewish life, Jewish communities invariably have a synagogue at their center. Each morning and evening, Jews gather for daily prayers and each Saturday we gather for weekly Sabbath prayers. A unique feature of Sabbath observance for Orthodox Jews is to desist from using modern forms of transportation such as cars, buses and trains. Thus, for Orthodox Jews to be able to gather for communal prayers on the Sabbath, a meeting place for such groups must be present within walking distance of any community in order for it to enjoy the fullness of its religious observances. Thanks to the freedoms enjoyed by citizens of this nation, the Orthodox Jewish community is the fastest growing segment of the American Jewish population with an acute need to expand or found new communities. The ability to rent facilities, such as geographically convenient public schools, is necessary for nascent communities to expand or grow to the point where they can undertake the construction of a new synagogue.

U.O.J.C.A. is supporting the Petitioners because it believes that New York Education Law § 414 is a roadblock to the Orthodox Jewish community’s full enjoyment of its constitutional rights. U.O.J.C.A. believes that the limited forum doctrine may not be used to support viewpoint-based discrimination against religious speech and that the Establishment Clause may not be raised as a defense for what is essentially religious discrimination.


2003 The Federalist Society