Stuart J. Roth

Brett Kavanaugh, Counsel of Record

Introduction and Summary of Argument

Under the Community Use policy for the Milford Central School District, members of the public may use public school facilities for (I) "instructions in any branch of education, learning, or the arts," (ii)"holding social, civic, and recreational meetings and entertainment events," or (iii) "other uses pertaining to the welfare of the community." Milford’s expansive public access policy contains one – and only one – express exception: "School premises shall not be used by any individual or organization for religious purposes." Pursuant to this policy, the Milford Board of Education denied the request of the Good News Club (a community-based youth organization that provides moral instructions from a Christian perspective) to use its facilities. See 202 F.3d 502 (2d Cir. 2000).

The discriminatory policy enacted by Milford Central School District targets religious speech for a distinctive burden. Milford’s discrimination against private religious speech in general, and against the Good News Club in particular, is unconstitutional. As the Court has concluded in several virtually identical cases, the Constitution demands that private religious speech, religious people, and religious organizations receive at least the same treatment as their secular counterparts in gaining access to public facilities and public property. See Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819 (1995); Lamb’s Chapel v. Center Moriches Union Free School Dist., 508 U.S. 384 (1993); Widmar v. Vincent, 454 U.S. 263 (1981). Indeed, with respect to the precise issue of access to public school facilities that is raised in this case, the Court has repeatedly (and often unanimously) held that "schools may not discriminate against religious groups by denying them equal access to facilities that the schools made available to all." Rosenberger, 515 U.S. at 846 (O’Connor, J., concurring). In so ruling, the Court has emphasized time and again that the Free Speech and Free Exercise Clauses protect "private speech endorsing religion." Id. At 841 (majority opinion).

Because the Court has already ruled decisively on the two central issues raised here, this case requires the Court to break no new ground, but merely reaffirm its prior holdings. First, the Establishment Clause does not require the government to exclude private religious speech, because it is religious, from an open and neutrally available public facility. Second, the Free Speech, Free Exercise, and Equal Protection Clauses do not permit the government to exclude private religious speech, because it is religious, from an open and neutrally available private facility.