Gerald J. Russello *

Can a religious "viewpoint" be separate from the religious basis of that viewpoint? A panel of the Second Circuit has ruled that a public school district may ban a religious group from after school meetings. In doing so, the Second Circuit has muddied the difference between a religious viewpoint and religious "content," and creates a hopelessly vague standard as to when a religious group may offer its views on "the secular subject of morality."

In The Good News Club v. Milford Central School,(1) the panel, affirming the district court, held that the Milford, New York school district did not discriminate against the Good News Club, because the Club's activities were religious in nature and not merely presenting issues from a religious viewpoint. The Milford school had an after-school policy that permitted outside organizations to use school facilities for "social, civic [or] recreational meetings" that were non-exclusive and open to the public. The policy specifically forbids use "by an individual or organization for religious purposes." The Good News Club, a community-based Christian youth organization with branches in several parts of the country, requested permission to hold meetings at the school in the fall of 1996. Their meetings consist of prayer, songs and lessons designed to examine moral issues in a Christian context. After reviewing the materials submitted by the Club in support of its request, the mschool superintendent rejected the Club's request, finding that the Club's activities "to be the equivalent of religious worship." Id. at *4. The school had previously supplied bus service to students who wished to attend Club meetings off-site, but this had been discontinued. Id. at *3.

Judge Miner, writing for the majority, found that the school policy was both reasonable and viewpoint neutral in the context of the school's status as a limited public forum.(2) The panel, rejecting the Club's argument, held that the school reasonably found a risk that the school would be seen as condoning a particular religion, and held that the differences between formalized religious services and Club meetings was "immaterial." Id. at *6. Further, the majority found that because Club meetings "clearly and intentionally communicated Christian beliefs," allowing use of the school would convey to "young and impressionable children" who were non-Christian that they were not welcome. Id.

The majority also found that the school policy was viewpoint neutral, despite the fact that the school permitted other groups, such as the Girl Scouts, to present viewpoints on moral issues. The majority could not distinguish "how the Club's activities differ materially from the `religious worship' described in Full Gospel Tabernacle(3): "[E]ach has prayers and devotional songs . . . . Applying a different label to the same activities does not change their nature of import." Id. at *7. Therefore, the Club's activities constituted "religious instructions and prayer" rather than a general reverence "incidental to the main purpose" of organizations such as the Scouts, such as personal growth and the development of leadership skills. Id. at *8.

Judge Jacobs, in dissent, disputed the majority's reliance on Full Gospel Tabernacle and instead thought that the substantially identical case involving a Good News Club in Missouri,(4) in which the Eighth Circuit permitted use of the school facilities, was the better guide, and that the Supreme Court's decision in Lamb's Chapel(5), which found a First Amendment violation when a school district prohibited the showing of a film series that presented family issues from a Christian perspective, was dispositive of the issues presented. Id. at *10-11 (Jacobs, J., dissenting). Judge Jacobs found "quixotic" the majority's attempt to distinguish between an isolated subject of "moral issues" and moral issues when seen from a religious perspective: "th[e] transformative, goal-directed tendency of religious viewpoints does not justify a preference for other viewpoints." Id. at *12 (Jacobs, J., dissenting).

Good News Club presents an issue more troubling than which precedent is controlling. Rather, the majority and dissent present fundamentally different views as to what religion is, and what value those who profess religion place on it to guide their lives. Under the majority's analysis, there is no "religious viewpoint" that would be acceptable, except insofar as it ceased to have any coherent religious message. Groups such as the Scouts are permitted to be generally reverential, so long as the religious message is "incidental" to the groups' main, secular purposes.

This approach completely ignores, as Judge Jacobs points out, that one cannot so easily separate the "content" of moral decision from the religious "viewpoint." The majority's analysis effectively forecloses a viewpoint-discrimination challenge by any group that believes religious faith is an essential part of its "viewpoint" on issues of morals. The majority's separation of "secular" morality, on which there may be a "religious viewpoint," and religious content, which may be constitutionally forbidden, will require — as the majority concluded, id. at *3 — intense examination of the precise wording and substance of the religious group's position, searching for the forbidden religious "content." In the case of the Club, this forbidden content included prayers, religious songs and other elements that the Club believed were integral to presenting a religious perspective on moral issues. Good News Club casts the court in role of censor, carefully extracting any religious language or reasoning that could not also be secular.

The majority's other assumptions are equally shaky. The majority points to no evidence in the record supporting its contention that "young and impressionable children" (or anyone else) would feel unwanted should the Good News Club be permitted to hold meetings. The school policy did not permit only groups of only a particular religion to hold meetings; presumably if the Good News Club were allowed to hold such meetings, groups representing other religious traditions would also be allowed. The "save the children" argument is simply a phantom in this context, especially when coupled with the existence of school-supplied bus service for students wishing to attend Good News meetings. As recounted by the majority, the most likely explanation of the school's decision to ban the Club was fear of a lawsuit (which resulted in any event). This case vividly illustrates the strains placed on reasonable accommodation to all viewpoints in a community under the shadow of lengthy litigation and fickle judicial review.

Equally troubling is the majority's apparent failure to distinguish between a nondenominational meeting presenting religious views on moral issues and formal religious services. Under the majority's narrow view, only those religious presentations that mimic secular analyses will present a licit "viewpoint." Under the guise of neutrality, this refusal to acknowledge a basic and obvious distinction between worship and teaching will force religious groups into presenting religious teachings as "incidental" to their viewpoint in order to present them at all.

In sum, Good News Club is likely to make it more difficult for religious groups to present their viewpoints in a limited public forum such as a school unless they keep any religious "content" to a minimum.

* Gerald J. Russello is an associate at Covington & Burling in New York. He clerked for Judge Leonard I. Garth of the United States Court of Appeals for the Third Circuit for the 1998-99 term. The opinions expressed are his own.

1. No. 98-9494. 2000 WL 126760 (2d Cir., Feb. 3, 2000).
2. The parties did not dispute that the Milford school was a limited public forum for the purpose of its free speech analysis. Id. at *5.
3. Full Gospel Tabernacle v. Community Sch. Dist. 27, 164 F.3d 829 (2d Cir. 1999) (per curiam) (affirming district court's finding that holding religious services in school auditorium would not amount to viewpoint discrimination).
4. Good News/Good Sports Club v. School Dist., 28 F.3d 1501 (8th Cir. 1994).
5. Lamb's Chapel v. Center Moriches Union Free Sch. Dist, 508 U.S. 384 (1993).