# Amicus Curiae Brief — Lamb's Chapel v. Center Moriches Union Free School Dist. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0280%3A16 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1993 - **Citation:** 508 U.S. 384 ## Text No. 91-2024 IN THE Supreme Court of the Pnited i OCTOBER TERM, 1992 LAMB’S CHAPEL and JOHN STEIGERWALD Petitioners, V. CENTER MORICHES UNION FREE SCHOOL DISTRICT, LOUISE TRAMONTANO in her official capacity as President of the Board of Education for Center Moriches Schools, and NEW YORK STATE ATTORNEY GENERAL'S OFFICE, Respondents, Petition for Writ of Certiorari to the United States Court of Appeals for the Second Circuit BRIEF AMICI CURIAE OF CONCERNED WOMEN FOR AMERICA AND FREE CONGRESS FOUNDATION IN SUPPORT OF PETITIONERS Wendell R. Bird” David J. Myers Bird & Associates 1150 Monarch Plaza 3414 Peachtree Road, N_E. Auanta, Georgia 30326 (404) 264-9400 > Counsel of Record STEIN PRINTING TABLE OF CONTENTS TABLE OF CONTENTS TABLE OF AUTHORITIES INTEREST OF AMICI IN THIS CASE SUMMARY OF ARGUMENT ARGU MENT THE SCHOOL DISTRICT'S EXCLUSION OF ONLY RELIGIOUS SPEECH IS UNCONSTITUTIONAL UNDER PUBLIC FORUM ANALYSIS. A. Discriminatory Content-Based Exclusions Are Unconstitutional in a Designated Public Forum Such as the School District Facilities Here. l. The School District’s Facilities Are a Designated Public Forum, as the Second Circuit Found. Content and Viewpoint Discrimination: Against Religious Speech Are Unconsti- tutional in a Designated Public Forum, as This Court Held in Widmar. . Censorship of Religious Speech Is Also Viewpoint Discrimination. B. Discriminatory Content-Based Exclusions Are Unconstitutional Even in a Nonpublic Forum When Not Tied Directly to the Purposes of the Forum. l. The Court Generally Has Upheld Only Content-Neutral Exclusions from Nonpublic Fora. Content-Based Exclusions (Including Subject Matter Exclusions) Are Upheld -ii- Only Where They Are Necessitated by the Purpose of the Forum and Are Ideologically or Viewpoint Neutral. a. The Three Content-Based Exclusions that the Court Has Upheld Were Viewpoint Neutral and Were Necessitated by the Purposes of the Forum in Question. b. The Touchstone of Public Forum Analysis Has Always Been Whether the Manner of Expression Is Basically Incompatible with the Normal Activity of a Particular Place at a Particular Time. 3. The School District’s Exclusion of All Religious Speech Is Not Necessitated by the Purposes of This Forum Nor by Any Incompatibility with Its Normal Activities. 4. The Exclusion of All Religious Speech, While Permitting All Other Categories of Speech, Is Unconstitutional Viewpoint- Based Discrimination, Even if the Second Circuit Were Right that Content-Based Discrimination Is Permissible in Desginated Public Fora. . If Recent Public Forum Analysis Permits the School District’s Censorship In This Case, the Court Should Modify that Analysis To Reaffirm the Compatibility Standard. 1. The Second Circuit’s Public Forum Analysis Is Circular and Destroys All Distinction Between a Designated Forum and a Nonpublic Forum. 2. The Second Circuit’s Public Forum 10 10 13 14 16 17 17 -iii- Analysis Treats Religious Speech Less Fairly Than Other Categories of Speech, in Direct Conflict With Widmar. 3. The Grayned Standard Avoids the Circularity Problem and Is Consistent with Widmar. Il. THE SCHOOL DISTRICTS EXCLUSION OF ONLY RELIGIOUS SPEECH IS UNCONSTITUTIONAL UNDER OTHER FREEDOM OF EXPRESSION PRINCIPLES. A. The Exclusion Is Invidious Discrimination. B. The Exclusion of Only Religious Speech Is Arbitrary and the School District Exercises Standardless Discretion in Enforcing the Exclusion, Which Constitutes a Prior Restraint. 1. Exclusion of Religious Speech Is Arbitrary. 2. Exclusion of Religious Speech Is Discretionary and Standardless. . The Exclusion Shows Hostility Toward Religion, Which Is Prohibited by the Religion Clauses of the First Amendment. 1. The Establishment Clause Prohibits Hostility Toward Religion. 2. The Free Exercise Clause Prohibits Hostility Toward Religion. . The Exclusion Denies Due Process and Equal Protection Because It Is Unconstitutionally Overbroad. CONCLUSION 21 -ive TABLE OF AUTHORITIES CASES: Page Abington School District v. Schempp, 374 U.S. 203 (1963) 27 Adderley v. Florida, 385 U.S. 39 (1966) 9 Board of Airport Commissioners v. Jews for Jesus, Inc., 482 U.S. 569 (1987) 15 Board of Education v. M -- US. ---, 110 S.Ct. 2356 (1990) 16 Brown v. Louisiana, 383 U.S. 131 (1966) 14 Cantwell v. Connecticut, 310 U.S. 296 (1940) 3, 26 City Council v. Taxpayers for Vincent, 466 U.S. 789 (1984) 17 City of Madison Joint School Dist. v. isconsin Em Relations Comm'n, 429 U.S. 167 (1976) 10 Cohen v. California, 403 U.S. 15 (1971) 24 Consolidated Edison v. Public Service Comm'n, 447 U.S. 530 (1980) 10 Cornelius v. NAACP Legal Defense and Educ. Fund, Inc., 473 U.S. 788. (1985) 6, 11 Epperson v. Arkansas, 393 U.S. 97 (1968) 25 -V- Everson v. Board of Education, 330 U.S. 1 (1947) /nternational wmf ay yoy Consciousness, Inc. v. Lee, --- U.S. ---, 112 S. Ct. 2701 Grayned v. City of Rockford, 408 U.S. 104 (1972) Greer v. Spock, 424 U.S. 828 (1976) Hague v. CIO, 307 U.S. 496 (1939) Hynes v. Mayor of Oradell, 425 U.S. 610 (1976) Secretary of State v. Joseph H. Munson Co., Inc., 467 U.S. 947 (1984) Kunz v. New York, 340 U.S. 290 (1951) Lamb’s Chapel v. Center Moriches Union Free School Dist., 959 F.2d 381 (2d Cir. 1992) Lehman v. City of Shaker Heights, 418 U.S. 298 (1974) Lynch v. Donnelly, 465 U.S. 668 (1984) May v. Evansville- ee School Corp., 787 F.2d 1105 (7th Cir. 1986) McCollum v. Board of Education, 333 U.S. 203 (1948) McDaniel v. Paty, 435 U.S. 618 (1978) 25, 27 9, 11, 12, 14 3, 14, 22, 23 12, 25 26 27 27 25 -vi- Monterey County Democratic Centrol Committee v. United States Postal Service, 812 F.2d 1194 (9th Cir. 1987) 7 New York Times Co. v. Sullivan, 376 U.S. 254 (1964) 24 New York Times v. United States, 403 U.S. 713 (1971) 27 Niemotko v. Maryland, 340 U.S.268 | (1951) 25 Perry Educ. Ass'n v. Perry Local Educators’ Ass'n, 460 U.S. 46 (1983) 9,19 Police Dept. v. Mosley, 408 U.S. 92 (1971) 7, 11, 14, 16, 25 Street v. New York, 394 U.S. 576 (1969) 24 Tinker v. Des Moines School Dist., 393 U.S. 503 (1969) 11, 16 United States Postal Service v. Council of Greenburgh Civic Associa- tions, 453 U.S. 114 (1981) ) United States v. Kokinda, --- U.S. ---, 110 S. Ct. 3115 (1990) 7,9 Walz v. Tax Commission, 397 U.S. 664 (1970) 27 Widmar v. Vincent, 454 U.S. 263 (1981) 2, 3, 5, 6, 10, 11, 14, 15, 16, 21, 22, 28 Wisconsin v. Yoder, 406 U.S. 205 (1972) 28 Witters v. Washington Department of -vii- Services for the Blind, 474 U.S. 481 (1986) 28 Zorach v. Clauson, 343 U.S. 306 (1952) 28 U.S. CONSTITUTION: U.S. Const. amend. I 3, passim OTHER AUTHORITIES: A. Cox, Freedom of Expression (1982) 28 Buchanan, The Case of the Vanishing Public Forum, 4 U. Ill. L. Rev. 949 (1991) 10, 21 Cass, First Amendment Access to Government Facilities, 65 Va. L. Rev. 1287 (1979) 13, 23 Comment, Forum Over Substance: Cornelius v. NAACP Legal Defense & Education Fund, 35 Cath. U.L. Rev. 307 (1985) 10, 11, 19 20, 23 Dienes, The Trashing of the Public Forum: Problems in First Amendment Analysis, 55 Geo. Wash. L. Rev. 109 (1986) 24 Farber & Nowak, The Misleading Nature of Public Forum Analysis: Content and ontext in First Amendment Adjudication, 70 Va. L. Rev. 1219 (1984) 5,15 Karst, Public Enterprise and the Public Forum: A Comment on Southeastern Promotions, Ltd. v. Conrad, 37 Ohio St. LJ. 247 (1962) 23 -Viii- Laycock, Equal Access and Moments of Silence: The Equal Status of Religious Speech by Private Speakers, 81 Nw. .L. Rev. 1 (1986) 20, 22 A. —— Political Freedom (1960) 5 Nimmer, Nimmer on Freedom of Speech: A Treatise on the Theory of the First Amendment (2d ed. 1984) 23 Note, A Unitary Approach to Claims of First Amendment Access to Publicly Owned Property, 35 Stan. L. Rev. 121 (1982) 23, 24 Note, The Public Forum: Minimum Access, Equal Access, and the First Amendment, 28 Stan. L. Rev. 117 (1975) 23 Post, Between Governance and Management: The History and Theory of the Public Forum, 34 UCLA L. Rev. 1713 (1987) lo, 19, 23 Stone, Content Neutral Restrictions, 54 U. Chi. L. Rev. 46 (1987) §,23 Stone, Restrictions of Speech Because of Its Content: The Peculiar Case of ubject-Matter Restrictions, 46 U. Chi. L. Rev. 81 (1978) 8, 15 L. Tribe, American Constitutional Law (1978) 23 Werhan, The Supreme Court’s Public Forum Doctrine and the Return o Formalism, 7 Cardozo L. Rev. 335 (1986) 23 IN THE SUPREME COURT OF THE UNITED STATES October Term, 1992 No. 91-2024 Lamb’s Chapel and John Steigerwald Petitioners, Vv. Center Moriches Union Free School District, Louise Tramontano in her official capacity as President of the Board of Education for Center Moriches Schools, and New York State Attorney General’s Office espondents, On Writ of Certiorari to the United States Court of Appeals for the Second Circuit BRIEF AMICI CURIAE OF CONCERNED WOMEN FOR AMERICA AND FREE CONGRESS FOUNDATION IN SUPPORT OF PETITIONERS INTEREST OF AMICI IN THIS CASE Amicus curiae, Concerned Women for America ("CWA"), is a national non-profit organization representing ap- proximately 600,000 peopie. CWA’s purpose is as ‘Counsel of record to the parties in this case have consented to the filing of this brief. Letters of consemt have been filed with the Clerk of the Court pursuant to Rule 36. -% follows: The purpose of CWA is to preserve, protect and promote traditional and Judeo-Christian values through education, legal defense, legislative programs, humanitarian aid, and related activi- ties which represent the concerns of men and wom- en who believe in these values. Amicus curiae, the Free Congress Research & Educa- tion Foundation, is a non-partisan, non-profit public policy research institute formed in 1977. It is dedi- cated to advancing traditional values through, among other activities, (i) education and research on issues of legal and social policy, state policy (including the initiative and referendum process), fiscal responsibili- ty, and institutional reform, and (ii) training in con- servative governance and coalition leadership, both in the United States and throughout Eastern Europe and the new independent states. erty, and strongly oppose restrictions on speech upon public property that has been opened to the public for expressive activity. Amici prea support free speech and religious lib- SUMMARY OF ARGUMENT The Second Circuit has forced a newly-created fourth category into public forum analysis by treating the school district’s facilities as simultaneously a desig- nated public forum and a nonpublic forum. The fa- cilities cannot be both. The school district’s facilities are a designated public forum, as the Second Circuit held. The exclu- sion of only religious speech is therefore the same con- tent discrimination this Court condemned in Widmar. It is also viewpoint discrimination (which is unconstitutional in both designated and nonpublic fora) because Lamb’s Chapel does not seek access to speak about the subject of religion, but to speak about _% other subjects (such as the family) from a religious viewpoint. The school district’s facilities are not a nonpublic forum, but even if they are the content-based exclusion- ary policy is unconstitutional. The Second Circuit er- roneously assumed that the government has unlimited au- thority to exciude any subject or speaker from a nonpub- lic forum for any reason or for no reason, misconstru- ing this Court’s nonpublic forum cases. Content-based exclusions from nonpublic fora must be justified by the purposes of the forum, under Grayned. Here, no such justification is offered and none is possible. The Second Circuit cannot have applied this Court’s forum analysis correctly. First, the Second Circuit’s reasoning is circular, making the designated forum a nonpublic forum only as to religious speech simply be- cause the school district says so and allowing the school district to opt out of strict scrutiny review at will. Second, the Second Circuit’s result irreconcil- ably conflicts with Widmar. If the Second Circuit did apply forum analysis correctly, that analysis has departed from the correct constitutional principles set out in Grayned and should be modified to avoid cir- — and to avoid conflict with Widmar, as a host of commentators have urged. Additionally, the exclusion of only religious speech violates the First Amendment independent of the torum and content discrimination rules. It is invidious dis- crimination because it is just as content-based as an exclusion of all blacks’ speech would be. It is a pri- or restraint because it is arbitrary-there is no artic- ulable reason for it--and because it is the same discre- tionary and standardless restraint condemned in Cantwell. It violates both the Establishment and the Free Exercise clauses by its hostility to reli- gion. Finally, it is overbroad because it necessarily censors nonreligious speech as well. -4- ARGUMENT I. THE SCHOOL DISTRICT’S EXCLUSION OF ONLY RELIGIOUS SPEECH IS UNCONSTI- TUTIONAL UNDER PUBLIC FORUM ANALYSIS. A. Discriminatory Content-Based Exclusions Are Unconsti- tutional in a Designated Public Forum Such as the School District Facilities Here. 1. The School District’s Facilities Are a Designated Public Forum, as the Second Circuit Found. The Second Circuit correctly held that the school district by policy and practice had opened its facili- ties to the ublic for expressive activity, so that the facilities had become a designated or limited public forum. Lamb’s Chapel v. Center Moriches Union Free School Dist., 959 F.2d 381, 386, 388 (2d Cir. 1992). However, the Second Circuit went on to relegate the fa- cilities to a previously unknown "subcategory" of desig- nated public forum “that allows it to remain non-public except as to specified uses." /d. at 386.2. Because the school categories of speech. /d at 388. As a result of this judicial creativity, the Second Circuit paradoxically permitted the school district to engage in content discrimination that is unconstitutional in designated public fora and to engage in viewpoint discrimination that is unconsti- tutional even in nonpublic fora. If permitted, this approach would allow any content discrimination, any- where, any time: merely by governmental definition, the front of the constitutional bus becomes a designated forum for nonreligious speech, and the back of the bus is where religious speech must go. 2. Content and Viewpoint Discrimination Against Reli- gious Speech Are Unconstitutional in a Designated Public Forum, as This Court Held in Widmar. Throughout this Brief, all emphasis is added and all internal citations are omitted unless otherwise noted. 5. By definition, the school district’s exclusion of all speech “for religious purposes," 959 F.2d at 387, is discrimination based on the content of speech. Con- tent- and viewpoint-based restrictions are "incompatible with the central precepts of the first amendment” because, first, they "mutilate ‘the thinking rocess of the community.” Stone, Content Neutral estrictions, 54 U. Chi. L. Rev. 46, 55 & n.37 (1987) te) A. Meiklejohn, Political Freedom 27 1960)). Second, such restrictions carry a high risk of improper motivation, "for government officials will often, consciously or unconsciously, be influenced by their own opinions about the merits of the restricted speech." Stone, 54 U. Chi. L. Rev. at 56. The risk of improper motivation is not limited to society-wide pro- hibitions of a message or a category of speech, but also exists for “situational restraints," such as the specific exclusion in this case. Farber & Nowak, The Misleading Nature of Public Forum Analysis: Content and Context in First Amendment Adjudication, 70 Va. L. Rev. 1219, 1225 (1984). Thus, in Widmar v. Vincent, 454 U.S. 263, 267-70 (1981), this Court applied strict scrutiny and struck down a public university’s selective exclusion of only religious speech from its designated forum. There was no hint of the verbal legerdemain used by the Second Circuit--i.e., that the university could save its dis- crimination by positing a nonpublic forum for religious speech and a designated public forum for other speech. This case is no different from Widmar. While the Second Circuit attempted to distinguish Widmar, the only argument it could find was that Widmar in- volved students seeking access to a forum open only to students, while this case involves "outside organiza- tions seeking access." 959 F.2d at 389. The distinc- tion is nonexistent because the forum at issue here has not been limited to students, but has by policy and — been opened to "outside organizations.” b’s Chapel is no more of an outside organization than are the humane societies, property owners’ associa- tions, dance groups, choral societies, political commit- -6- tees, Brownies, and the dozens of other social, civic, and recreational groups given access to the school dis- trict’s facilities. None of those groups is a student group, and there is no argument in this case that the school district’s facilities have been opened only to student groups. Lamb’s Chapel is within the same class as the multitude of other groups that have been granted access, but has been excluded solely because of the re- ligious content of its speech. This case is therefore governed by Widmar and the school district’s policy cannot stand.’ Widmar merely applied, in the context of _ desig- nated forum, a bedrock principle of the First Amendment: selective exclusion from a public place on the basis of speech content is unconstitutional. [U]nder the Equal Protection Clause, not to men- tion the First Amendment itself, government may not grant the use of a forum to people whose views it finds acceptable, but deny use to those wishing to express less favored or more contro- 3 Widmar’s holding that religious speech may not be excluded from a designated forum absent a compelling state interest is not contradicted by some arguably un- bounded dicta in Cornelius v. NAACP Legal Defense and Educ. Fund, Inc., 473 US. 788, 802 (1985) (‘a _ public forum may be created by government designation ... for use by the public at large .. . , for use by cer- tain speakers, or for the discussion of certain sub- jects"). Widmar dealt squarely with the identical issue presented here--denial of access to a_ public school’s designated forum based solely on the religious content of the applicant’s speech, where the applicant is of the same class of speakers as those to whom the forum has been opened. Cornelius did not address religious speech at ll. Just as important, the exclu- sion upheld in Cornelius was premised on the appli- cants’ demonstrated disruptiveness. 473 U.S. at §10-11. x % versial views. And it may not select which issues are worth discussing or debating in pub- lic facilities. There is an "equality of status in the field of ideas," and government must af- ford ali points of view an equal opportunity to be heard. Once a forum is opened up to assembly or speaking by some groups, government may not prohibit others from assembling or speaking on the basis of what they intend to Say. Selective exclusions from a public forum may not be based on content alone, and may not be justified by reference to content alone. Police Dept. v. Mosley, 408 U.S. 92, 94 (1971) (invalidating city ordinance prohibiting all picketing next to a school except labor picketing). 3. Censorship of Religious Speech Is Also Viewpoint Dis- crimination. The Second Circuit failed to realize that the school district’s blanket exclusion of all religious speech also constitutes viewpoint discrimination, which is un- constitutional whether the school district’s facilities are a designated forum or a nonpublic forum. The gov- ernment engages in viewpoint discrimination when it "grant[s] to ‘one side of a debatable public question . . . @ monopoly in expressing its views.” United States v. Kokinda, --- US. --, 110 S. Ct. 3115, 3125 (1990), quoting Monterey County Democratic Cen- tral Committee v. United States Postal Service, 812 F.2d 1194, 1198-99 (9th Cir. 1987). Here, the school district grants a viewpoint monopoly by allowing speech by anyone who finds religion unilluminating on the is- sue discussed, and at the same time barring speech by anyone who finds religion illuminating on the issue and wishes to say so. The exclusion is not of speech about the subject of religion, but of speech expressing religious viewpoints about other subjects (in this case, the American family). Nearly all reli- 4Exclusion of all speech about a _ particular subject may have a_ viewpoint-differential impact and -8- gious speech is also some other of speech, which is also then censored by the school district. The pur- portedly content-neutral exclusion of all religious speech is not viewpoint-neutral, but is a masquerade for viewpoint discrimination. See May v. Evans- ville-Vanderburgh School Corp., 787 F.2d 1105, 1114 (7th Cir. 1986) ("allow[ing] the premises to be used for any meetings by teachers except prayer meetings . . . would be a restriction discriminating against a par- ticular point of view"). It is not viewpoint neutral to say that all reli- gious speech equally must go to the back of the expres- sive bus. B. Discriminatory Content-Based Exclusions Are Unconsti- tutional Even in a Nonpublic Forum When Not Tied Di- rectly to the Purposes of the Forum. 1. The Court Generally Has Upheld Only Content-Neutral Exclusions from Nonpublic Fora. Where this Court has upheld restrictions on speech in nonpublic fora, most often the restrictions were con- tent-neutral. In J/nternational Society for Krishna Consciousness, Inc. v. Lee, --- U.S. --, 112 S. Ct. 2701 (1992), and in Kokinda, --- US. --, 110 S. Ct. 3115, the restrictions in question forbade ail solicitation based on "the inherent nature of solicita- tion itself, a content-neutral ground,” and "[{did] not discriminate on the basis of content or viewpoint.” should be strictly scrutimized, as Dean Stone has pointed out. Stone, Restrictions of Speech Because of Its Content: The Peculiar Case of Subject-Mater Restrictions, 46 U. Chi. L. Rev. 81, 109-11 (1978). There is a clear viewpoint-differential impact here: exclusion of all speech about the subject of religion furthers non-religious viewpoints, which prefer that religion not be discussed at all, and treats religious viewpoints as second-class in comparison tu other viewpoints. The harm is not ameliorated by treating all religious viewpoints as equally second-ciass. -9-. Kokinda, --- U.S. ---, 110 S. Ct. at 3124-25 (plurality opinion). See also id., --- US. ---, 110 S. Ct. at 3126 (Kennedy, J. concurring in the judg- ment) (ban on all solicitation “does not discriminate on the basis of content or viewpoint"). In United States Postal Service v. Council of Greenburgh Civic Associations, 453 U.S. 114 (1981), the restriction banned ail unstamped mailable matter from letterbox- es. The Court upheld the restriction because it was a “content-neutral regulation." /d at 131 n.7.~ In Adderley v. Florida, 385 US. 39, 48 (1966), the Court upheld application of a state trespass statute against protestors who blocked a jail driveway and adja- cent ae because the trespass statute had a “lawful nondiscriminatory purpose.” Other exclusions that have been upheld were based on the identity of the speaker but were content-neutral and were based on incompatibility with the purposes of the forum. See Perry Educ. Ass'n v. Perry Local Edu- cators’ Assn, 460 US. 46, 49 (1983) (distinction between speakers upheld “based on the status of the respective unions,” not on the content of their speech); id at 5S (reiterating “difference in sta- tus"); Widmar, 454 U.S. at 268 n.5 (university fo- rum open to student groups not necessarily open to non- students). Such speaker identity distinctions are per- missible only “in the process of limiting a nonpublic forum to activities compatible with the intended purpose of the property.” Perry, 460 US. at 49. Accord Comment, Forum Over Substance: Cornelius v. NAACP Legal De & Education Fund, 35 Cath. L... Rev. 307, 310 & n.27 (1985); Buchanan, The Case of the Vanishing Public Forum, 4 U. Ill. L. Rev. 949, 962 n.122, 973-74 (1991) (restrictions based only on speaker identity are content-neutral and are properly tested against a reasonableness standard). Valid speak- Saccord May, 787 F.2d at 1113 (exclusion of all teacher groups upheld, but exclusion only of religious teacher groups would be ‘an abridgment of free speech however one classifies the [school] along the range of public-private forum’). -10- er identity distinctions are content-neutral; they can- not exclude all religious speakers. Subject matter exclusions, on the other hand, be- cause they are by definition content-based, should trig- ger strict scrutiny (or at least intermediate scruti- ny). See Consolidated Edison v. Public Service omm’'n, 447 U.S. 530, 537, 538 (1980) ("First Amend- ment’s hostility to content-based regulation extends not only to restrictions on particular vi ints, but also to prohibition of public discussion of an entire topic’, “[to] allow a government the choice of per- missible subjects for public debate would be to al- low that government control over the search for politi- cal truth"). Thus, the Court has struck down con- tent-based restrictions on speech in nonpublic fora. City of Madison Joint School Dist. v. Wisconsin Em- ployment Relations Comm'n, 429 U.S. 167, 176 (1976) (board of education could not "be required to discrimi- nate between speakers on the basis of . . . the content of their speech"). 2. Content-Based Exclusions (Including Subject Matter Exclusions) Are Upheld Only Where They Are Necessi- tated by the Purpose of the Forum and Are Ideologi- cally or Viewpoint Neutral. a The Three Content-Based Exclusions that the Court Has Upheld Were Viewpoint Neutral and Were Necessi- tated by the Purposes of the Forum in Question. In three cases to date, this Court has upheld con- tent-based exclusions from nonpublic fora. special circumstances justifying those exclusions do not exist in this case, even assuming that the school district's facilities can be treated as a nonpublic forum. First, in Cornelius, the Court upheld the feder- al government’s exclusion of legal defense and oups from the Combined Federal Campaign charitable nd-raiser because those groups’ participation in the CFC "je dized the success of the Campaign.” 473 U.S. at 810. The validity of the exclusion did not 28. hinge on the government’s carte blanche authority to cntinds speakers from the nonpublic forum for any rea- son or for no reason at all. Instead, the government was required to show that the excluded speaker “would disrupt [the] forum and hinder its effectiveness for its intended purpose.” Id. at 811. See also. International iety for Krishna Consciousness, Inc. v. Lee, --- U.S. ---, 112 S. Ct. at 2714 (O’Connor, J., concurring) (Comelius was premised in part on record evidence that participation of exclud- ed groups “would have jeopardized the success of the campaign"; absence of similar evidence from airport au- thorities made ban on leafletting in airport unreason- able). Here, the school district has made no attempt to show that Lamb’s Chapel’s proposed film series on the family would in any way disrupt the forum, jeopardize its success, or hinder its effectiveness. Instead, the school district takes Comelius to the extreme and applies it where there is no disruption and where the proposed religious speech is functionally indistinguish- able from permitted speech. Second, in Greer v. Spock, 424 U.S. 828 (1976), the a upheld vot ~a ph 44 -» +. -Y~ I ith rt e- wed wl Secon’ on ts cus sharon of Sh itary bases. /d at 838. of the “special constitutional function of the military in our national life,” id. at 837, the base commander was autho- rized to determine which civilian speakers “would be If the result in Cornelius was not premised on disruption and incompatibility with the forum's purposes, the case is inconsistent with previous cases that focused on compatibility and that allowed content-based distinctions only when the nature of the forum dictated that they be allowed. See Comment, 35 Cath. U.L. Rev. at 331 & 10.189 (criticizing Cornelius as inconsistent with Tinker v. Des Moines School Dist, 393 US. S03 (1969), Widmar, 454 US. at 263, and Mosley, 408 US. at 92). -12- rtive of the military mission" of the base and which would not. Id at 838 n.10.’ The re- laxed scrutiny applied in the special case of a mili- base in Greer has no lication to the forum of the school district facilities in this case. Finally, in Lehman v. City of Shaker Heights, 418 U.S. 298 (1974), the Court upheld a city’s exclu- sion of political adveriisements from spaces in city buses that were used only for commercial advertise- ments. As this Court recently stressed in describing Lehman, the city was “acting as a tor, manag- ing its internal operations, rather t ing as law- maker with power to regulate or license." International Society for Krishna Consciousness, Inc. v. Lee, --- US. --, 112 S. Ct. at 2705. The Court’s opinion in Lehman repeatedly stressed the solely commercial purpose of the car card spaces. 418 U.S. at 303-304 ("the city is engaged in commerce”; “[t}]he car card space . .. iS a part of the commercial venture”; “[rjevenue . . . could be dized” by ac- cepting political advertisements; the city was acting “in a proprietary capacity"). See Cass, First Amendment Access to Government Facilities, 65 Va. L. Rev. 1287, 1347 (1979) (Lehman was correctly decid- ed because of the validity of “[t]he distinction be- tween commercial and other uses"). In addition, a ma- jority of the Court in Lehman was concerned that riders of city buses were a “captive audience” that the city could r choose to shield from political advertisi 418 U.S. at 304 (plurality opinion); id. at 308 (Douglas, J., concurring). - None of the justifications for the restriction in Lehman is present here. Neither the public schools as schools nor the designated forum that the district ‘in an interesting contrast to the attitude of the school district officials in this case, ome of the civilian speeches that the base commander in Greer had deemed to be ‘supportive of the military mission” was “a religious service by a visiting preacher at the base chapel.” 424 US. at 838 n.10. -13- makes available after school hours are commercial enter- prises, as the buses and the car cards were for the city in Lehman. Nor is the audience for any of the functions that occur in the school district’s designat- ed forum in any sense a captive audience; those who at- tend functions at the school district’s facilities do so voluntarily and because they choose to hear the speech that occurs there. b. The Touchstone of Public Forum Analysis Has Always Been Whether the Manner of Expression Is Basically Incompatible with the Normal Activity of a Particu- lar Place at a Particular Time. Long before the Court definitively enunciated the categorization of fora as public, designated, and non- _ it had analyzed cases involving speech on pub- property using the principle that still underlies public forum analysis: compatibility of the speech with the normal use of the forum. The nature of a place, “the pattern of its normal activities, dictate the kinds of regula- tions of pro place, - viol that are reason- able.” though a silent vigil may not unduly interfere with a -— library, Brown v. Loui- siana, 383 U.S. 131 (1966), making a speech in the reading room almost certainly would. That same speech should be perfectly appropriate in a park. The crucial question is whether the man- ner of expression is basically incompatible with the normal activity of a particular place at a duns {I]n each case, expressive activity may be prohibited if it “materially disrupts [the forum] or involves substantial disorder or invasion of the rights of others.” Grayned v. City of Rockford, 408 US. 10, 118 (1972). The Court made the same point in Mosley, 408 U.S. at 100, which was decided the same day as Grayned. In Mosley, the Court invalidated a -14- city ordinance distinguishing between labor and non-labor — [re because one was no more disruptive than the ot we pee emphasis on compatibility of ‘the pro- ech with the purposes of the forum still under- “bite forum analysis. See International Soci- = or Krishna Consciousness, Inc. v. Lee, --- U.S. --, 112 S. Ct. at 2708 (emphasizing “the disruptive effect that solicitation may have on _ business’); id. at 2718 (Kennedy, J., concurring in the judg- ment) (“If the objective, physical characteristics of the property at issue and the actual public access and uses which have been permitted by the government indi- cate that expressive activity would be appropnate and compatible with those uses, the property is a pub- lic forum."); id. at 2724 (Souter, J., concurring) ("we should classify as a public forum any piece of pub- lic property that is ‘suitable for discourse’ in its physical character, where expressive activity is ‘compatible’ with the use to which it has actually been put"), citing Grayned, 408 U.S. at 116. See also Widmar, 454 "US. at 277 (recognizing “a universi- ty’s right to exclude even First Amendment activities that violate reasonable campus rules or substantially interfere with the opportunity of other students to ob- tain an education"); Board of Airport Commissioners v. Jews for Jesus, Inc., 482 U.S. 569, 576 (1987) ("nondisruptive speech . . . is still protected speech even in a nonpublic forum"). 3. The School District’s Exclusion of All Religious Speech Is Not Necessitated by the Purposes of This Forum Nor by Any Incompatibility with Its Normal Ac- tivities. The school district is unable to offer any fo- rum-related as for its discriminatory exclu- sion of all religious ech. Absent some justifica- tion, however, t ond usion cannot stand even if the school district’s facilities are a nonpublic forum. As Justice O’Connor noted in discussing previous nonpublic forum cases: -15- [W]e have required some explanation as 'o why certain speech is inconsistent with the intended use of the forum. International Society for Krishna Consciousness, Inc. v. Lee, -- US. —, 112 S. Ct. at 2714 (concurring opinion). Otherwise, the forum easily becomes a dis- = for viewpoint discrimination. See Farber & owak, 70 Va. L. Rev. at 1240-41 ("[T]he government's goals in passing the challenged situational restraint . . . must relate to the specific situation and to the kind of speech being regulated. If the governmental regulation bans a certain type of speech in schools, the government goals should relate to schools and to the effects of the regulated speech in the school envi- ronment, and not to the general undesirability of cer- tain kinds of speech."); Stone, 46 U. Chi. L. Rev. at 114 ("[T]he state must explain not only why it restrict- ed the speech it restricted, but also why it failed to restrict the speech it exempted from the restriction. It must, in other words, justify the content-based re- striction. Such justification is necessary .. . be- cause the very existence of the content-based distinc- tion tends to undercut the state’s showing .. . that the restriction is a7 to serve some substantial government — oe Accord Post, Between Gov- ernance and -—ia The History and Theory o the Public Forum, 34 UCLA L. Rev. ° "113, 1827. 1987) (selective access to a forum is permissible for “the achievement of legitimate institutional ends”). The school district might attempt to offer Establish- ment Clause concerns as a justification for the exclu- sion of all religious speech, but those concerns have already been disposed of by this Court. See Board o Educ. v. Mergens, --- U.S. ---, 110 S. Ct. 2356, 237 (1990) (Equal Access Act for student-initiated reli- ious groups in public high schools does not violate stablishment Clause); Widmar, 454 U.S. at 270-75 ay — university facilities to religious ps on the terms available to other groups does not etahe Establishment Clause). The school district might also attempt to offer con- ."* troversy-avoidance concerns as a justification, but those concerns too have been disposed of repeatedly by this Court: In order for the State in the person of school officials to | gpooe A prohibition of a particular expression of opinion, it must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopu- lar viewpoint. Tinker, 393 U.S. at 514. See also id. at 508 ("in our system, undifferentiated fear or apprehension of disturbance is not enough to overcome the rght to freedom of ages - Mosley, 408 U.S. at 100-101 (citing quoting Tinker). 4. The Exclusion of All Religious Speech, While Permit- ting All Other Categories of Speech, Is Unconstitu- tional Viewpoint-Based Discrimination, Even if the Second Circuit Were Right that Content-Based Discrim- ination Is Permissible in Designated Public Fora. As this Court has repeatedly held, viewpoint exclu- sions are the prime evil against which the First Amend- ment protects, even in nonpublic fora. "[T]he First Amendment forbids the government to regulate speech in ways that favor some viewpoints or ideas at the expense of others." City Council v. Taxpayers for Vincent, 466 U.S. 789, 804 (1984) (city-owned utility poles a nonpublic forum). Here, the school district contends that its exclu- sion is viewpoint neutral because it applies to all re- ligious speech. But the purportedly content-neutral exclusion of all religious speech is in fact viewpoint discrimination. See supra Section 1A3. In this instance, the proposed speech would have been a reli- ious viewpoint on the subject of the American family. n the next instance, the speech may be a religious viewpoint on politics, the arts, crime and punishment, and so on. e school district’s policy grants access -17- to the Manorville Humane Society but denies access to any animal protection society operating with a reli- ious viewpoint on the morality of cruelty to animals. e policy grants access to H.E.L.P. (Help Every Living Person), but denies access to any poverty relie a zation with a religious viewpoint on an individual's obligation to help the less fortunate. The school dis- tricts policy is nonsensical, but it is also unconsti- tutional viewpoint discrimination. C. If Recent Public Forum Analysis Permits the School District’s Censorship in This Case, the Court Should Modify that Analysis To Reaffirm the Compatibility Standard. 1. The Second Circuit’s Public Forum Analysis Is Circu- lar and Destroys All Distinction Between a Designat- ed Forum and a Nonpublic Forum. According to the Second Circuit, the school dis- trict’s facilities are a designated forum only for = mitted speech: "the school property in question falls within the subcategory of ‘limited public forum,’ the classification that allows it to remain non-public ex- cept as to specified uses." 959 F.2d at 386. Contrary to this Court’s precedent, the Second Circuit failed to require the school district to justify its exclusions based on any particular purpose of the forum. The Sec- ond Circuit’s approach therefore allows the school dis- trict entire freedom to specify discriminatorily the uses (i.e., the subjects and viewpoints) that it will accommodate in its designated forum and to exclude dis- criminatorily other subjects and viewpoints (by failing to specify them), all without relation to the purpose of or activities in the iorum and without any evidence of disruption. Thus, the school district’s facilities are a designated forum for the "Hampton Council of Churches/Family Counseling Services Billy Taylor Con- cert" and the “Southern Harmonizers Gospel Singing," but remain a nonpublic forum for Lamb’s Chapel’s film series simply because the school district says so. The Second Circuit’s approach makes public forum -18- -19- analysis circular--the school district can restrict dence of that intent, then the plaintiff loses speech simply because it intends to: In every case. [H]ere, because the Court categorizes a place as Post, 34 UCLA L. Rev. at 1756-57. a particular type of forum by reference to the restrictions on expression the government To derive its approach, the Second Circuit miscon- intended for that place, the Court allows strued Perry, aS commentators have feared would the government to set its own standard of re- happen: view. Thus, a circular pattern emerges. The ae government decides to restrict expression in a Perry distinguishes the various fora on place. The Court, seeing that the government intended to restrict expression there, categoriz- es the place as a type of forum according to the degree of restriction the government intended. The type of forum then dictates the degree of restriction. When the restriction is chal- lenged, the Court, with an appropriately relaxed examination, accepts the government’s justifica- tions, thereby validating the restrictions. Thus, the government is permitted a restriction because the government intended that restric- tion. the basis of the government’s action in allowing or limiting access to particular property, a dis- tinction which is valuable as a broad outline of forum analysis. This distinction is misleading, however, if used as a method of analysis rather than a summary of that analysis, as it implies that the government may restrict expression in some places simply because it intends to re- Strict expression in those places. A _ closer look reveals that . . . the underlying principle remains quite simple: restrictions on expres- sion are constitutionally permissible only to the extent that such restrictions require compat- Comment, 35 Cath. U.L. Rev. at 332 (emphasis in origi- ibility with the normal use of the property. nal). as Comment, 35 Cath. U.L. Rev. at 310-11. The result is that speakers who have been deliberate- ly excluded from a forum will never succeed in obtain- A final flaw of the Second Circuit’s forum analysis ing access to the forum: iS that the school district can set its own standard of review and can opt out of the compelling interest test If a limited public forum is neither more nor (or an intermediate test) at will: less than what the government intends it to be, ; : then a first amendment right of access to the The most troubling thing . . . is that cen- forum is nothing more than the claim that the sorship can become self-justifying .... The government should be required to do what it al- ready intends to do in any event. This approach] shrinks the limited public forum to such insignificance that it is diffi- cult to imagine how a plaintiff could ever suc- cessfully prosecute a lawsuit to gain access to such a forum. If the reach of the forum is de- termined by the intent of the government, and if the exclusion of the plaintiff is the best evi- implication is that the government can convert a limited public forum to a nonpublic forum with- Out any reason whatever, or even because of hos- tility to =. The government’s intention to close or limit the forum may be shown by evi- dence that it has excluded speakers in the past. A choice to close the limited public fo- rum is not constrained by a requirement that all speech be treated equally; the government can -20- allow some speakers into a nonpublic forum while excluding others. . . . It makes little sense to apply the compel- ling interest test to a category of cases and then let the government opt out of the category at will. Laycock, Equal Access and Moments of Silence: The Status of Religious gre by Private Speakers, 81 Nw. U.L. Rev. 1, 46-47 (1986). See also Com- ment, 35 Cath. U.L. Rev. at 333 ("Motivation becomes justification, without regard to the constraints im- posed by the first amendment."). 2. The Second Circuit’s Public Forum Analysis Treats Religious Speech Less Fairly Than Other Categories of Speech, in Direct Conflict With Widmar. Widmar is virtually identical to this case: a governmental unit purported to open a forum to all speakers within a designated class except religious speakers. The Second Circuit’s decision in this case, however, is contrary to this Court’s resolution of the issue--this Court did not allow the university in Widmar to define the forum as open to “all student groups except religious student groups" and thereby to evade strict scrutiny of its exclusion by simple seman- tics. Professor Buchanan anticipated this conflict in a hypothetical example that might as well have been lift- ed directly from this case: The strength of the Widmar holding erodes if the government is permitted to frame its original invitation on the basis of the sub- ject matter of speech. For example, suppose the university had extended its original invitation to "all students who want to speak on any sub- ject other than religious matters." If the ap- plicable forum--the university’s facili- ties--retains its nonpublic forum status as to speakers outside the defined class, the Court Sip will apply to restrictions affecting such speak- ers the more lenient standards of review used in nonpublic forum cases. That, in turn, provides the government with a ready means for avoiding the reach of the transformation principle an- nounced in Widmar. Buchanan, 4 U. Ill. L. Rev. at 960-61.5 Widmar and the Second Circuit’s resolution of this case can- not be reconciled. 3. The Grayned Standard Avoids the Circularity Problem and Is Consistent with Widmar. Amici believe that the Second Circuit’s resolution of this case was not compelled by this Court’s public forum cases, but was instead a misconstruction of those cases. See supra Sections 1.A.2.-3., I.B.1.-4., and I.C.1.-2. If, however, the Second Circuit properly _ this Court’s most recent public forum analysis, the re- sult reached in this case demonstrates that public fo- rum analysis has become circular and is being used to deny the very protections it was meant to enforce. See supra Section I.C.1. SThis case is also identical to Widmar in another respect: the school district in this case relies on a State statute that has been interpreted to limit the use of school facilities to nonreligious purposes, while the university in Widmar relied on an_ inter- pretation of the Missouri constitution forbidding ac- cess to the university’s facilities by religious stu- dent groups. This Court held in Widmar that the federal constitutional right of access under the Free Exercise Clause and the Free Speech Clause overrode any contrary state law. 454 U.S. at 276. See also Laycock, 81 Nw. U.L. Rev. at SO n.234 ("Widmar found a federal right of access to a umiversity open forum that overrode contrary state law.”). The same _ result necessarily follows here. ay 7 » The solution would be to return to the incompatibili- ty standard enunciated in Grayned and other earlier cases that served as the theoretical basis for public forum analysis: if the manner and subject of the speech is basically compatible with the normal activity of the public place at the time of the speech, any re- striction of the speech should be strictly scruti- nized. That standard prevents disruption of public fora while at the same time preventing unnecessary and unjustified discrimination against certain subjects or viewpoints, all without falling into definitional circu- larity. The attraction of Grayned is not diffi- cult to appreciate. Its logic begins from the constitutionally congenial premise that the state should not suppress speech unless there is a good reason to do so. The reason for discour- aging speech on ——— property is that it may interfere with the use of that property. If such interference occurs, the state may justifi- ably prohibit speech; conversely, the absence of interference indicates that the state may lack sufficient grounds to abridge speech. The doc- trine proposed by Grayned thus invites courts to focus precisely on the relationship between speech and the reasons for its regula- tion, and it is designed to maximize the speech which the government is constitutionally re- quired to tolerate, consistent with the appropri- ate and needful use of its property. is de- sign flows naturally from the first amendment’s central objective of ensuring “uninhibited, ro- bust, and wide-open" public debate. Post, 34 UCLA L. Rev. at 1766. That is why, as Professor Post has observed, "[bly far the great majority of commentators have advocated that some variant of the Grayned approach be adopt- ed." /d. at 1765S, citing M. Nimmer, Nimmer on Freedom of Speech: A Treatise on the Theory of the First Amendment § 4.09{[D], at 4-73-4-74 (2d ed. -23- 1984); L. Tribe, American Constitutional Law 690-92 (1978); Cass, 65 Va. L. Rev. at 1317-i8; Karst, Public Enterprise and the Public Forum: A Comment on Southeastern Promotions, Ltd. v. Conrad, 37 Ohio St. LJ. 247, 261-62 (1962); Stone, Content-Neutral Re- strictions, 53 U. Chi. L. Rev. 46, 93-94 (1987); Wer- han, The Supreme Court’s Public Forum Doctrine and the Return of Formalism, 7 Cardozo L. Rev. 335, 378-84, 423-24 (1986); Note, The Public Forum: Mini- mum Access, Equal Access, and the First Amendment, 28 Stan. L. Rev. 117, 138 (1975); Note, A Unitary Ap- proach to Claims of First Amendment Access to Publicly Owned Property, 35 Stan. L. Rev. 121, 143-51 (1982). See also Comment, 35 Cath. U.L. Rev. at 311, 331; Dienes, The Trashing of the Public Forum: Problems in First Amendment Analysis, 55 Geo. Wash. L. Rev. 109, 112 (1986). Il. THE SCHOOL DISTRICT’S EXCLUSION OF ONLY RELIGIOUS SPEECH IS UNCONSTITUTIONAL UNDER OTHER FREEDOM OF EXPRESSION PRINCIPLES. A. The Exclusion Is Invidious Discrimination. Exclusion of religious speech is no different (and no more related to the purposes of this forum) than ex- clusion of blacks’ speech, or exclusion of women’s gem or exclusion of a nationality’s speech: it is the most invidious of discriminations. In each case, the exclusion conveys the governmental message that the permitted speech is first class, and that the excluded speech is second class or worse. Such an exclusion or- ers religious speech off the constitutional bus. This sort of exclusion strikes at the heart of the First Amendment: But, above all else, the First Amendment means that government has no power to restrict expres- sion because of its message, its ideas, it sub- ject matter, or its content. Cohen v. Califor- nia, 403 US. 15, 24 (1971); Street v. New -24- York, 394 U.S. 576 (1969); New York Times Co. v. Sullivan, 376 U.S. 254, 269-270 (1964). ... The essence of this forbidden censorship is content control. Any restriction on expres- sive ss because of its content would com- pletely undercut the ‘profound national commit- ment to the principle that debate on public is- sues tat be uninhibited, robust, and wide-open.” New York Times Co. v. Sullivan, supra, at 270. Mosley, 408 U.S. at 95. An exclusion of religious speech rests overtly on its content, and on nothing else. B. The Exclusion of Only Religious Speech Is Arbitrary and the School District Exercises Standardless Dis- cretion in Enforcing the Exclusion, Which Consti- tutes a Prior Restraint. 1. Exclusion of Religious Speech Is Arbitrary. Almost all religious speech is intermixed with polit- ical, philosophical, ideological, or other protected speech. The search for “pure” religious speech would not find many sermons and prayers, and would find lit- tle else. Instead, most religious speech involves reli- gious perspectives on issues that others address from political, philosophical, or other ideological perspec- tives. A perfect example is the Focus on the Family Film series that Lamb’s Chapel sought to exhibit in the school district’s facilities, which involve not only Biblical principles about the family but secular psy- chology and other opinion. Singling out religious speech for exclusion is arbi- trary discrimination and is contrary to the oft-repeated test that there must be "neutrality be- tween religion and religion, and between religion and nonreligion.” Epperson v. Arkansas, 393 US. 97, 104 (1968). E.g, Everson v. Board of Education, 330 U.S. 1, 18 (1947). -25- It is also arbitrary to allow speech on a topic’ when it is from other perspectives, but to exclude it when it is from religious perspectives. There is no consti- tutionally permissible rationale for t—— | some but not other perspectives on the same issue. Even in the most nonpublic of forums (a mili base), an ex- clusion cannot “be applied irrationally, invidiously, or arbitrarily." Greer, 424 U.S. at 840. In other locations, miany cases have found that exclusion of reli- ious speech was arbitrary. E.g., Niemotko v. Mary- and, U.S. 268, 273 (1951) ("completely arbitrary and discriminatory"); Hague v. CIO, 307 U.S. 496, — ("arbitrary suppression of free expres- sion"). 2. Exclusion of Religious Speech Is Discretionary and Standardless. If religious speech is normally intermixed with oth- er protected speech, any enforcement of a prohibition on religious speech must inherently involve standard- less official discretion in determining what part of the mixed speech is religious and what speakers may be excluded as intolerably religious. What standard guid- ed the official censor in determining that the Focus on the Family films must be excluded as "religious"? They were not excluded for being wholly religious, be- cause the films contain much secular psychology. They must then have been excluded age too reli- gious. But what standards determined what percentage was too religious, what portions were religious perspec- tives in the overlap with psychology and counseling dis- ciplines, and at what point entire films instead of only —— segments were excluded? The exclusion of the tilm required standardless determinations on each of those issues. Such standardless discretion in identifying religion and excluding it violates the First Amendment as a pri- or restraint and censorship, as this “Court recognized in Cantwell v. Connecticut: [The official] is empowered to determine whether -26- the cause is a religious one ... . His deci- sion to issue or re it involves appraisal of facts, the exercise of judgment, and the forma- tion of an opinion. He is authorized to with- hold his approval if he determines that the cause is not a religious one. Such a censorship of religion as the means of deter- mining its right to survive is a denial of liber- ty protected by the First Amendment and .. . the Fourteenth. 310 U.S. 296, 305-06 (1940). Such official discretion has been repeatedly condemned by this Court. F.g., Secretary of State v. Joseph H. Munson Co., Inc., 467 U.S. 947 (1984); Hynes v. Mayor of Oradell, 425 U.S. 610, 622 (1976); Niemotko, 340 U.S. at 271; Kunz v. New York, 340 U.S. 290, 294 (1951). Also, ‘{ajny system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity." New York Times v. United States, 403 U.S. 713, 714 (1971). C. The Exclusion Shows Hostility Toward Religion, Which Is Prohibited by the Religion Clauses of the First Amendment. 1. The Establishment Clause Prohibits Hostility To- ward Religion. The Court has long recognized that hostility toward religion would violate the Establishment Clause, be- cause that clause forbids not only “advancement [but] inhibition of religion." Walz v. Tax Commiussion, 397 U.S. 664, 672 (1970). The Court has cautioned that ‘affirmatively opposing or showing hostility to [theistic] religion" would impermissibly prefer nonthe- ists over theists. Abington School District v. Schempp, 374 US. 203, (1963). Justice Gold- berg’s concurrence noted that "pervasive devotion to the secular" and “hostility to the religious” would con- travene the Establishment Clause. /d@ at 306. In Everson, the Court noted that government must not be the “adversary” of religion or “handicap” religions. -27- Everson v. Board of Education, 330 US. 1, 18 (1947). "“[Gjovernmental hostility to religion or reli- gious teaching” would "be at war with . . . the free exercise of religion." McCollum v. Board of Educa- tion, 333 U.S. 203, 211-12 (1948). Justice Brennan’s concurrence when the Court struck down the exclusion of ministers from legislatures noted that "the exclusicn manifests patent hostility toward .. . religion. . . and, in sum, has a oe | effect which inhibits reli- ion" in violation of the Establishment Clause. McDaniel v. Paty, 435 U.S. 618, 636 (1978). _ Here, permitting other speech while excluding reli- gious speech was simply "preferring those who believe in no religion over those who do believe," contrary to the Establishment Clause. Zorach v. Clauson, 343 U.S. 306, 313-14 (1952). 2. The Free Exercise Clause Prohibits Hostility To- ward Religion. As Professor Archibaid Cox has noted, "[t]he framers ut freedom of conscience first, and then moved on to reedom of speech and the press. They were concerned above all else with spiritual liberty: freedom to think, to believe, and to worship." A. Cox, Freedom of Expression 1 (1982). This Court in Wisconsin v. oder, 406 U.S. 205 (1972), and other decisions has shown deep respect for religious rights. The Court has routinely struck down discrimination against religion, whether in excluding religious groups from public uni- versities, Widmar, 454 Os. at 269-70, in excludin ministers trom state legislatures, McDaniel, 43 U.S. 618, or in excluding seminary students from univer- sity grants to the blind, Witters v. Washington De- partment of Services for the Blind, 474 US. 481 (1986). Such “hostility would bring us into ‘war with our national tradition as embodied in the First Amend- ment’s guaranty of free exercise of religion.’ McCollum, supra, at 211-212." Lynch v. Donnel- ly, 4605 U.S. 668, 673 (1984). The decision in Employment Division v. Smith x % condemns this sort of discrimination against free exer- cise of religion, when it forbids laws directly prohib- iting free exercise of religion. -- U.S. ---, 110 S. Ct. 1595 (1990). The school district’s rule that bars religious speech is precisely a rule prohibiting free exercise. D. The Exclusion Denies Due Process and Equal Protec- tion Because It Is Unconstitutionally Overbroad. The exclusion of all religious speech censors not just the religious portions but the nonreligious por- tions of speech. For example, the exclusion of the Fo- cus on the Family film applied not only to its Biblical discussion but also to its secular —. This overt exclusion of nonreligious speech mixed with reli- gious speech is the first aspect of overbreadth. The exclusion of religion also chills speech by speakers with religious viewpoints. Those speakers, instructed that they may not engage in (undefined) religious speech, inevitably will censor themselves and avoid even speech that is permitted from fear of violating the prohibition. This practical exclusion of nonreli- gious speech is the einen aspect of overbreadth. This Court has consistently decried such over- breadth. It struck down the prohibition of all "First Amendment activities" in the Los Angeles airport: We think it obvious that such a ban cannot be justified even if LAX were a nonpublic forum be- cause no conceivable governmental interest would justify such an absolute prohibition of speech. Board o or Commissioners v. Jews for Jesus, Inc., 482 U.S. at S7S. E.g, Broadnck v. C..aho- ma, 413 U.S. 601, 61S (1973). No conceivable govern- mental interest justifies "such an absolute prohibition of [religious] speech" here, particularly when the fo- rum is a designated public forum. The uneventful use of the public school facility for nonreligious speech shows the lack of any governmental interest in prohibit- ing any nondisruptive speech, and the overbreadth of -29- prohibiting religious speech. CONCLUSION For the foregoing reasons, amici respectfully urge this Court to reverse the judgment of the United States Court of Appeals for the Second Circuit in this case. Date: November 19, 1992. Respectfully submitted, WENDELL R. BIRD* DAVID J. MYERS Bird & Associates 1150 Monarch Plaza 3414 Peachtree Road, N.E. Atlanta, Georgia 30326 (404) 264-94 “Counsel of Record Attorneys for Amici Cunae --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0280%3A16. Public record. Not legal advice.