SUPREME COURT OF THE UNITED STATES
THE GOOD NEWS CLUB, ANDREA FOURNIER,
AND DARLEEN FOURNIER
MILFORD CENTRAL SCHOOL,
On Writ of Certiorari to the United States
Court of Appeals for the Second Circuit
BRIEF AMICI CURIAE OF CHRISTIAN LEGAL SOCIETY AND
UNION OF ORTHODOX JEWISH CONGREGATIONS OF AMERICA
IN SUPPORT OF PETITIONERS
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
1640 Rhode Island Avenue, NW
Washington, DC 20036
Carl H. Esbeck*
Center for Law and Religious Freedom
CHRISTIAN LEGAL SOCIETY
Evergreen Lane, Suite 222
Annandale, Virginia 22003
*Counsel of Record
TABLE OF CONTENTS
Table of Contents
Table of Authorities
Statement of Interest of Amici
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
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
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
A. The Establishment Clause Does Not Permit Officials to Classify
Per Religious Categories Religious Words, Practices and Events
IV. That School Officials Had No Animus Toward The Good News
Club or Its Message Is Irrelevant
TABLE OF AUTHORITIES
Abington Sch. Dist. v. Schempp, 374 U.S. 203 (1963)
Basich v. Board of Pensions, 540 N.W.2d 82 (Minn. Ct. App.
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 Commn, 447 U.S.
Corporation of Presiding Bishop v. Amos, 483 U.S. 327 (1987)
County of Allegheny v. Greater Pittsburgh ACLU, 492 U.S.
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 Socy of Krishna Consciousness,
452 U.S. 640 (1981)
Himaka v. Buddhist Churches of Am., 917 F. Supp. 698 (N.D.
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. Vaad Harabonim of Greater Monsey, 53 F.
Supp.2d 732 (D.N.J. 1999)
Korean Presbyterian Church v. Lee, 880 P.2d 565 (Wash. Ct.
Kreshik v. St. Nicholas Cathedral, 363 U.S. 190 (1960)
L.L.N. v. Clauder, 563 N.W.2d 434 (Wis. 1997)
Lambs 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.
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.
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.
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
Stephen L. Carter, Gods 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
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,
STATEMENT OF INTEREST OF AMICI CURIAE
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.
STATEMENT OF THE CASE
This is a case about discrimination against religious expression
and religious practice. Although this Court has affirmed, time and
again, that government is not requiredand, indeed, is not
permittedto 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 Schools
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 expressionbetween 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,
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
associationsthe "little platoons" of democracythat
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
SUMMARY OF THE ARGUMENT
The parties agree that Milfords 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 Clubs use is not a religious
use but merely the teaching of morals from a religious viewpoint,
. . . Milfords . . . 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
This Policy, and the application of it in this case, are unconstitutional.
Neither the opinion below, nor the Second Circuits 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 Courts decisions in Lambs 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 Milfords 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 Circuits 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 otherbetween 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" subjectssuch
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, Milfords 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,
Milfords 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 Milfords
Policy, and its application here, are unconstitutional whether or
not any government official opposed or disagreed with the Clubs
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 courts 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
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 groups planned
expression, programs, and activities. Their inquiry is necessarily
complicated by our Nations ethnic and geopolitical diversitye.g.,
school districts, large and small, are inner-city, suburban, and
ruraland by the Nations 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 employeebecause of
variations in background, experience, religious devotion, or lack
thereofstrike another as "incidental to worship or secular
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 universityand ultimately
the courtsto 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.
Milfords 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 Policys invitation to petty officials
to separate the "too religious" from the "secular
enough" requires governmentincluding, eventually, the
courtsto 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 Jehovahs 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:
Appellants 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
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
Inquiries by government functionaries into the spiritual significance
of a religious organizations 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 organizations
words, practices, and events. Similar concerns, and a similar recognition
of governments 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 litigationintra-religious or notthat
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 persons 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 claimants 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
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 interactionindeed, some adjustments
and cooperationbetween 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, Amicis 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
organizationsmatters that were, using Professor Rakoves
apt term, "deregulated" at the Nations 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 administrativeand eventually judicialinquiry
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 officialsand
they will be the first to admit as muchlack 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
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 ("Petitioners intended
use of Respondents 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 groups 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 states argument that the Establishment
Clause justified or required silencing the Klans 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 Clauseand it is notwhy
resolve the conflict by tipping the "balance" in favor
of no-establishment? The courts could just as easilyand no
less arbitrarilyconclude 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 judgeswho are not hostile to religion so much
as they are without expertise in the subjectwill 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 governments
power. While the Clauses can overlap and reinforce one another,
two "negatives" on governmental power can never logically
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, thenclearlythe
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 OConnor, 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
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 communitys desire for a clear demarcation between
church and state. See, e.g., Brief in Opp. 9 ("Petitioners
intended use of Respondents 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. Milfords 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
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 Milfords
Policy, and Petitioner did not allege bad faith or invidious intent
on Milfords part. Still, in light of the Fifth Circuits
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. Tammanys 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. Tammanys 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 policys 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 Parishs] 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. Tammanys
policy that expressly permit discussion of religious viewpoints
provide affirmative evidence that the policy is not driven by viewpoint
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 Milfords
presumed good faith in drafting and applying its Policy as being
relevant to Petitioners argument that Milfords Policy
For all the foregoing reasons, Amici urge this Court to
reverse the judgment of the court below.
Carl H. Esbeck
Counsel of Record
Center for Law and Religious Freedom
CHRISTIAN LEGAL SOCIETY
4208 Evergreen Lane, Suite 222
Annandale, Virginia 22003
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
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 worlds 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. NCSYs 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
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 communitys 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.