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.
- No. 98-9494. 2000 WL
126760 (2d Cir., Feb. 3, 2000).
- 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.
- 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).
- Good News/Good Sports
Club v. School Dist., 28 F.3d 1501 (8th Cir. 1994).
- Lamb's Chapel v. Center Moriches Union Free
Sch. Dist, 508 U.S. 384 (1993).