Amicus Curiae Brief — Good News Club v. Milford Central School

No. 99-2036

IN THE

Supreme Court of the United States

THE GOOD NEWS CLUB, ef ai.,

Petitioners,

V.

MILFORD CENTRAL SCHOOL,

Respondent

On Writ of Certiorari to the United States Court of Appeals

for the Second Circuit

BRIEF OF THE NATIONAL COUNCIL OF CHURCHES,

THE BAPTIST JOINT COMMITTEE ON PUBLIC

AFFAIRS, THE GENERAL CONFERENCE OF SEVENTH-

DAY ADVENTISTS, THE REORGANIZED CHURCH OF

JESUS CHRIST OF LATTER DAY SAINTS, THE

AMERICAN MUSLIM COUNCIL, THE FIRST CHURCH OF

CHRIST, SCIENTIST, THE GENERAL ASSEMBLY OF

THE PRESBYTERIAN CHURCH (U.S.A.), THE GENERAL

BOARD OF CHURCH & SOCIETY OF THE UNITED

METHODIST CHURCH, AND THE A.M.E. ZION CHURCH

AS AMICI CURIAE IN SUPPORT OF PETITIONERS

CARTER G. PHILLIPS

GENE C. SCHAERR*

NICHOLAS P. MILLER

MICHAEL S. LEE

REBECCA K. SMITH

SIDLEY & AUSTIN

1722 Eye Street, N W

Washington, DC. 20006

(202) 736-8000

Counsel for Amici Curiae

November 30, 2000 * Counsel of Record

WiILSON-EPES PRINTING C IN - (202) 789-0096 - WASHINGTON, D.C 20001

QUESTIONS PRESENTED

1. Whether a policy that generally permits members of the

community to use public facilities after school hours for

educational, social, civic, and recreational purposes, but

excludes any person or group that desires to use school facil-

ities for religious purposes, violates the First Amendment’s

protection for free speech.

2. Whether such a policy violates the First Amendment’s

protection for the free exercise of religion.

3. Whether a government policy requiring public officials

to draw fine distinctions between “religious instruction” and

“discussion of moral issues from a religious viewpoint”

violates the Establishment Clause of the First Amendment.

(1)

TABLE OF CONTENTS

6b yy ed) )

py PF Re ys).

INTERESTS OF AMICI] CURIAE...0000000000.........

EE ATT

I. THE EXCLUSION OF RELIGIOUS INSTRUC-

TION OR WORSHIP FROM PUBLIC FACIL-

ITIES OTHERWISE OPEN TO COMMUNITY

GROUPS VIOLATES THE FIRST AMEND-

MENT’S FREE SPEECH CLAUSE .....................

A.

Under The Principles Governing A Limited

Public Forum, Milford Cannot, Absent A

Compelling Interest Not Present Here, Use

Religion As A Criterion To Define A Class

Or Category Of Excluded Content...................

Under The Principles Governing A Desig-

nated Full Public Forum, Milford Cannot,

Absent A Compelling Interest That Is Not

Present Here, Exclude Religious Groups

Based On Either Viewpoint Or Content.

(ii)

ill

C. The Establishment Clause Does Not Provide

A Basis To Exclude Religious Instruction Or

Worship Because, Under A Neutral And

Properly Implemented Facilities Use Policy,

Milford Neither — Nor Endorses

Religion ..............

Il. THE EXCLUSION OF RELIGIOUS INSTRUC-

TION OR WORSHIP FROM PUBLIC FACIL-

ITIES OTHERWISE OPEN TO COMMUNITY

GROUPS VIOLATES THE FIRST AMEND-

MENT’S FREE EXERCISE CLAUSE...

Ill MILFORD’S POLICY EXCESSIVELY EN-

TANGLES CHURCH AND STATE BY

REQUIRING OFFICIALS TO DRAW DUBI-

OUS DISTINCTIONS BETWEEN RELIGIOUS

INSTRUCTION AND SECULAR INSTRUC-

TION PRESENTED FROM A _ RELIGIOUS

“VIEWPOINT”...

CONCLUSION

14

22

25

30

iV

TABLE OF AUTHORITIES

CASES

Arkansas Educ. Television Comm'n vy. Forbes,

nics icinideiinnniinamsdiieadiiladinsats 6,7

Board of Educ. v. Grumet, 512 U.S. 687 (1994)... 20

Board of Educ. v. Mergens, 496 US. 226

ERS OTN ne ae 15, 16, 17, 21, 22

Bronx Household of Faith vy. Community Sch.

Dist. No. 10, 127 F.3d 207 (1997) ..00000.0. 2, 25

Brown v. Board of Educ., 347 U.S. 483 (1954)... 10

Campbell v. St. Tammany Parish Sch. Bd., Nos.

99-31071, 99-31140, 2000 WL 1597749 (Sth

ee I iin ietaigcannanieenninheneaiiindi 9,14

Campbell v. St. Tammany’s - Sch. Bd., 206 F.3d

SER Eneeeee 2

Capitol Square Review & Advisory Bd. v. Pinette,

Een 6, 15, 17

Church of the Lukumi Babalu A ye, Inc. v. City of

Hiahleah, 508 U.S. 520 (1993).....00000..0... 4, 11, 22, 23

Church on the Rock v. City of Albuquerque, 84

F 3d 1273 (10th Cir. 1996) 000. 3,8

Cornelius vy. NAACP Legal Def. Fund, 473 US.

SU TUTITITI cccisbesnstcinansaniisiesepeiecicheasinicdeesenmiapiniaties 7, 9, 12

Corporation of the Presiding Bishop v. Amos, 483

I eae eenahiacianmmaanal 15

Davis v. Boget, 50 lowa 11 (1878)... 5

DeBoer v. Village of Oak Park, 86 F. Supp. 2d

| TEESE SE name 2

Employment Div. v. Smith, 494 US. 872

SIT ncespsninsiincitasieacaiicceipessiibainnitiniaiaiminimetel 4, 22, 23, 24

Engel v. Vitale, 370 U.S. 421 (1962)... 16

Fairfax Covenant Church v. The Fairfax County

Sch. Bd., 17 F.3d 703 (4th Cir. 1994)... 3, 16, 17

Full Gospel Tabernacle vy. Community Sch. Dist.

27, 979 F. Supp. 214(S.D.N.Y. 1997)... 2

Vv

TABLE OF AUTHORITIES - continued

Page

Good News Good Sports Club vy. School Dist., 28

F 3d 1501 (8th Cir 1994)... 3, 18, 20

Grace Bible Fellowship v. Maine Sch. Admin.

Dist., 941 F 2d 45 (istCir 1991). 3,9, 13

Gregoire v. Centennial Sch. Dist., 907 F.2d 1366

(3d Cir 1990)... a 3, 16

Hartmann v_ Stone, 68 F. 3d 973 (6th Cir 1995). 23, 24

Hedges vy. Wauconda, 9 F.3d 1295 (7th Cir

EAA aT eae a F

Hobbie v. | Inemployment Appeals Comm'n, 480

Te ere iecaktiee Se

Hurd v. Walters, 48 Ind. 148 (1874) ef. 5

Lamb's Chapel v. Center Moriches Union Free

Sch. Dist., 508 U.S. 384 (1993) 0 passim

Lee v. Weisman, 505 U.S. 577(1992).. 16

Lemon v. Kurtzman, 403 U.S. 602 (1971)... 15, 26

Loving v. Virginia, 388 U.S. 1 (1967)... 10

Lynch v. Donnelly, 465 U.S. 668 (1984) ........_.15, 20, 21

McCollum v. Board of Educ., 333 US. 203

Ee 9 Se EN, 16

McDaniel v. Paty, 435 U S. 618 (1978) 0... 11, 23

Mitchell v. Helms, 120 S. Ct. 2530 (2000)... 17

Nichols v. School Dirs., 93 Wi. 61 (1879)... 5

Perry Educ. Ass'n v. Perry Local Educator's

Ass'n, 460 U.S. 37 (1983)... ....6, 7, 12, 13

Rosenberger v. Rector & Visitors, 515 U.S. 819

(1995) ... | aa 20, 21, 25, 26

Santa Fe Indep. Sch. Dist. Vv Doe. 530 US 290

(2000) . | 16

Saratoga Bible’ Ti raining Inst. v 'Schuylerville

Cent. Sch. Dist., 18 F. Supp. 2d 178 (N.D.N Y.

South San Antonio Indep. Sch. Dist. v. Martine,

275 S.W. 265 (Tex. Civ. App.), writ of error

refused, 277 § W. 78 (Tex. 1925)... 5

vi

TABLE OF AUTHORITIES -— continued

Page

Southside Estates Baptist Church v. Board of

Trs., 115 So. 2d 697 (Fla. 1959) 0.0... 5

State v. Kessler, 117 S\W. 85 (Mo. Ct. App.

DOI nc snccncascecessesssnssecesocssoneressensensressoosesnsvovecs 5

State ex rel. Gilbert v. Dilley, 145 NW. 999

(Ned. 1914) 0... eeseccceecsessesseseeenensenentnngeenenens 5

Teague v. Lane, 489 U.S. 288 (1989)... 22

United States v. Virginia, 518 U.S. 515 (1996) ..... 10

Walz v. Tax Comm'n, 397 U.S. 664 (1970)........... 15

West Virginia State Bd. of Educ. v. Barnette, 319

UPB. CBO CIDEDD. ..00cccecesececrecsscrrsceonesssersseseosesnses 21

Widmar v. Vincent, 454 U.S. 263 (1981).............. passim

Wisconsin v. Yoder, 406 U.S. 205 (1972).............. 15

CONSTITUTION AND STATUTE

BR Cine Be, 6... ...ncnnnccseenecserecersesocososcscsavscees 22

N.Y. Bdesc. Law § 404... ..cceeeccceceeteeeeeeeeeeenens 11

RULE

Sup. Ct. R. 37 once eeeeeeeeteeeeeeenersnssnenenenenenenens l

OTHER AUTHORITY

CT. Foster, Annotation, Use of Public School

Premises for Religious Purposes During

Nonschool Time, 79 A.L.R.2d 1148 (1961 &

2000 Sepp.) .........ceccccceccscereererseeesesserensenenneneens 14

INTERESTS OF AMICI CURIAE

Amici are a diverse group of churches and other religious

organizations that conduct religious activities, hold worship

services, or otherwise assemble at public facilities. Some-

times amici rent a public facility for use by a congregation

-hat is new or whose usual meeting place is under renovation.

At other times they may use such a facility for community

outreach and education, e.g., Bible study seminars, healthful

living programs, and family life presentations.

In so doing, amici seek no special favors. Nor do they seek

to use these facilities in a way that ignores legitimate

concerns about the fact or appearance of a religious establish-

ment. What they seek, instead, is equal access, i.e., access on

the same terms as other community groups, and provided in a

way that respects the need for an appropriate separation

between church and State.’

STATEMENT

This case resurrects an issue that amici and most other

religious groups thought had been laid to rest in Lamb's

Chapel vy. Center Moriches Union Free School District, 508

U.S. 384 (1993): whether a State can exclude religious

programs from public facilities that are otherwise available

for a broad range of similar, but secular, programs and events

In Lamb's Chapel, this Court unanimously ruled that such

exclusions violate the free speech rights of religious groups

' A complete list of amici, with descriptions of cach organization's

interest in this litigation, is set forth in a more detailed Statement of

Interest of Amici Curiae appended to this brief Petitioners and Respon-

dents have consented to the filing of this bnef in letters that are being filed

with the Clerk's office. The undersigned counsel alone have authored this

brief, and no person or entity other than amici has made a monetary

contnbution to its preparation or submission. See Sup Ct R. 37

2

and are not required by the Establishment Clause /d at 395-

97

~ Amici assumed this ruling and its reasoning would prevent

State officials from denying religious groups access to public

facilities on the same terms as other community groups

Unfortunately, using a crabbed interpretation of Lamb's

Chapel, some public officials and courts have systematically

prohibited churches and other religious associations from

holding programs in otherwise widely available public

facilities

The leading decision is Bronx Household of Faith v.

Community School District No. 10, 127 F.3d 207 (2d Cir

1997). There, the court held that such discrimination against

religious groups can be justified on the ground that most

programs run by churches do not present a religious “view-

point” on a secular subject, but instead amount to “religious

instruction or worship,” which can be excluded on the basis

of its “content.”

The Bronx Household view has sprouted disturbing tendrils

in at least two other circuits, where courts have approvingly

cited the decision in excluding religious groups from publicly

available facilities. Campbell v. St. Tammany's Sch. Bd , 206

F 3d 482, 486 (Sth Cir. 2000), DeBoer v. Village of Oak Park,

86 F. Supp. 2d 804, 810 (ND Ill 1999) Rather than

diminishing discrimination against religious groups’ use of

public forums, the Lamb's Chapel ruling has only caused

public officials in these circuits to become more adept at

excluding religiously-oriented programs ”

* Accord Saratoga Bible Training Instit. v. Schuylerville Cent. Sch

Dist., 18 F. Supp. 2d 178 (N.D.N_Y. 1998) (denying one-time use of high

school auditorium for an “Answers in Genesis” Bible and science

seminar), full Gospel Tabernacle vy. Community Sch. Dist. 27, 979 F

Supp. 214 (S.D.N.Y. 1997) (denying church’s request to rent public

school for Sunday services for one month)

3

To be sure, the dubious distinctions of Bronx Household

have not been accepted by a number of circuits, which have

prevented religious groups from being singled out for

exclusion from public forums.” But, in a number of States,

the Bronx Household approach jeopardizes the rights of

religious persons and groups—whose members are, in gen-

eral, taxpaying citizens of the States and communities in

which they live—to use public facilities on an equal basis

with similarly situated, yet secular, groups. It is high time to

dismantle that approach and to reinforce the equal access

principles of Lamb's Chapel

SUMMARY OF ARGUMENT

The Bronx Household approach, which effectively excludes

religion per se from public facilities, violates the Constitution

for three separate reasons First, it violates free speech

principles. The exclusion of views based on their religious

content is, in both principle and practice, a form of impermis-

sible viewpoint discrimination And because religion is a

suspect constitutional class, it cannot be used, as it 1s in the

Bronx Household doctrine, to define a categorical line of

exclusion from a public forum This is true whether the

school facilities at issue are viewed as a limited public forum,

as they were below, or as a designated full public forum for

after-hours usage, as this Court’s precedent would suggest

Such an exclusion, moreover, is not justified by the

Establishment Clause Under a properly designed use policy,

there will easily be enough separation between a religious

group’s activities and those of the public school to avoid, not

> Grace Bible Fellowship » \faine Sch. Admin. Dist., 941 F 2d 45 (ist

Cir. 1991), Gregoire v. Centennial Sch. Dist., 907 F.2d 1366 (3d Cir

1990): Fairfax Covemant Church y. The Fairfax County Sch. Bd , 17 F 3d

703 (4th Cir. 1994), Good News Good Sports Club v. School Dist, 28

F.3d 1501 (@th Cir. 1994), Church on the Rock vy. City of Albuquerque, 84

F 3d 1273 (10th Cit. 1996)

4

only State support for religion, but any message of

endorsement If anything, the Bronx Household approach

itself infringes the Establishment Clause by sending an

improper message of State hostility towards religion

Second, the Bronx Household approach violates the Free

Exercise Clause It does so by specifically targeting religious

activity for inferior treatment without any compelling interest

or attempt to tailor the governmental policy to such an

interest See Church of the Lukumi Babalu Aye, Inc. v Ci

of Hiahleah, 508 US $20, 546 (1993), Employment Div.

Smith, 494 LS 872, 878 (1990) Moreover, the Bronx

Household approach impermissibly burdens religious exercise

in combination with other constitutional rights, including free

speech and associational rights

Third, not only are policies such as the one at issue here not

justified by the Establishment Clause, but they also directly

violate that Clause Specifically, they impermissibly entangle

church anc: State by requiring school officials to draw dubious

and arbitrary distinctions between “religious viewpoint” and

“religious instruction or worship ”

Accordingly, the decision below should be reversed, and

the Bronx Household doctrine rejected in favor of an

approach that respects the constitutional mght of religious

people—whose taxes also pay for public facilities—to use

public property on equal terms with other taxpayers, while

complying with the legitimate constraints imposed by the

Establishment Clause

ARGUMENT

Our Nation has a rich tradition of providing religious

groups with equal access to public facilities—a tradition that

no doubt reflects the fact that the religious, no less than the

irreligious, contribute to the support of those same facilities

Throughout our history, for example, communities have

regularly allowed public schools to be used after hours for

5

religious purposes * Indeed, this tradition is reflected in a

once-popular television show, Little House on the Prairie,

which regularly depicted Sunday church services being held

in the community's one-room school

The school policy at issue here departs from that tradition

As shown below, it does so in a way that flatly violates three

separate provisions of the First Amendment. the Free Speech

Clause, the Free Exercise Clause, and the Establishment

Clause

‘ See. eg. Nichols y School Dirs , 93 I 61, 62, 64 (1879), Davis v

Boget, 50 lowa 11, 15 (1878), see also Southside Estates Baptist Church

, Board of Trs., 115 So 2d 697, 698, 700-01 (Fla 1959) (permitung

public school to be “used temporanly as a place of worship dumng non-

school hours”), South San Antonio Indep Sch Dist v Martine, 275 SW

265, 266 (Tex Civ App) (indicating public school trustee permitted

facilities to be used for “sectanan, political, and religious purposes’), wri!

of error refused. 277 SW. 78 (Tex. 1925) (stating that petition failed to

disclose an actionable abuse of discretion by school trustee), State ex re/

Gilbert v Dilley, 145 NW. 999, 999-1000 (Neb 1914) (permitting

occasional use of a schoolhouse as a place of worship on Sundays), //urd

v. Walters, 48 Ind. 148, 150 (1874) (noting that township act opened the

schoolhouse “for other purposes than common schools” provided there are

“equal nghts and pnvileges to all religious denominations and political

parties”), State v Kessler. 117 S W. 85, 85 (Mo. Ct App. 1909) (noung

that State statute “authonzes the use of schoolhouses ‘for religious,

literary or other public purposes “)

This has been true even in States with establishment clauses more

restrictive than that in the US. Consutution See, eg, Nichols, 93 Ill at

62-64 (permitting equal access where State constitution “forbid{s]

paving from any public fund whatever anything in aid of any

church or sectarian purpose”), Davis, 50 lowa at 15 (permitung equal

access where State constitution provides no “person [shall] be compelled

to pay tithes, taxes, or other rates for building or repaimng places of

worship”), see also Southside Estates, 115 So. 2d at 698-701, Gilbert, 145

N W at 999-1000

re a

See aEEEEaaaeEECEOeEee

6

I. THE EXCLUSION OF RELIGIOUS INSTRUC-

TION OR WORSHIP FROM PUBLIC FACIL-

ITIES OTHERWISE OPEN TO COMMUNITY

GROUPS VIOLATES THE FIRST AMEND-

MENT’S FREE SPEECH CLAUSE.

This Court has long held that religious speech is owed the

same constitutional protections and rights as secular speech

Our precedent establishes that private religious speech,

far from being a First Amendment orphan, is as fully

protected under the Free Speech Clause as secular

private expression Indeed, in Anglo-American history,

at least, government suppression of speech has so

commonly been directed precisely at religious speech

that a free-speech clause without religion would be

Hamlet without the prince

Capitol Square Review & Advisory Bd. v. Pinette, 515 US

753, 760 (1995) (citations omitted)

As applied to the States through the Fourteenth

Amendment, the First Amendment's Free Speech Clause gen-

erally requires that States justify any restriction on the content

Or viewpoint of private speech in a “traditional public forum”

by showing that the regulation in question “is necessary to

serve a compelling State interest and is narrowly drawn to

achieve that end” Arkansas Educ. Television Comm'n vy

Forbes, 523 US 666, 677 (1998) (quoting Perry Educ. Ass'n

v. Perry Local Educator's Ass'n, 460 US 37, 45 (1983))

Restrictions as to time, place, and manner of expression in

such a forum must be content neutral, narrowly tailored to

serve a significant government interest, and “leave open

ample alternative channels of communication” Perry Educ.

Ass'n v. Perry Local Educator's Ass'n, 460 US 37, 45

(1983) (citations omitted)

This same standard also applies to public property that is

not traditionally a public forum, but has been designated as

such when a State, either “by policy or by practice,” opens it

— _>-..

>

up to the public as a place for expressive activity Cornelius

v NAACP Legal Def. Fund, 473 US 788, 802 (1985), Perry

Educ. Ass'n, 460 US at 45 The government can limit such

designated forums to certain classes of speakers or subject

matter—thereby creating a “limited public forum”—as long

as the limits are “reasonable and not an effort to suppress

the speaker's view” /d at 46 However, if a government

“excludes a speaker who falls within the class to which a

des.znated public forum is made generally available, its

action is subject to strict scrutiny” Forbes, 523 US at 677 ;

Both parties in this case have assumed that the Milford

Central School (“Milford”) is a limited public forum (Pet

App C12) Thus, we first evaluate Milford’s Community

Use of School Facilities policy (“Policy”) under the limited

public forum doctrine We then show that Milford has in fact

created a full public forum for after-hours usage, and why its

Policy violates the First Amendment under a full public

forum analysis Finally, we show why the exclusion of relig-

10us instruction or worship, under either of these standards, is

neither required nor justified by the Establishment Clause

A. Under The Principles Governing A_ Limited

Public Forum, Milford Cannot, Absent A Com-

pelling Interest Not Present Here, Use Religion

As A Criterion To Define A Class Or Category

Of Excluded Content.

Even analyzed under the less restrictive standards of a

limited public forum, where classes of speech may be exclud-

ed on reasonable, viewpoint-neutral grounds, Milford’s Policy

* The Court has also defined a third category of public property forum

known as the “nonpublic” or “selective access” forum forbes, 523 US

at 679-80. Here, however, no claim is made by either side, or in any lower

court opimon, that Milford’s access policy has turned its facilities into a

non-public forum. Neither would evidence in the record appear to support

such a claim if it were made

8

violates the First Amendment. This is so for two independent

reasons

| The exclusion of the Good News Club is in fact view-

point discrimination Other youth clubs that focus on moral-

ity and character building—1including the Boy Scouts, the Girl

Scouts, and the 4-H Club—are given access to the School's

facilities (Pet App A3)} Milford cannot keep out the Club

merely because it addresses these same topics from a relig-

1OUS VIEW

To be sure, the Bronx Household approach attempts to

justify such discrimination on the ground that it is based on

content, not viewpoint, discrimination But this distinction

rests on a logical fallacy that posits that secular instruction

and sectarian instruction must be two separate categories of

content and cannot be two viewpoints on a similar topic

The Tenth Circuit exposed the flaw in this reasoning in

Church on the Rock vy. City of Albuquerque, 84 F 3d 1273,

1279 (10th Cir 1996) In that case, city-owned senior centers

prohibited sectarian instruction within their facilities The

city defended the policy by arguing that it was viewpoint

neutral, and that it excluded religion as a class of content and

not as a viewpoint

In rejecting this contention, the Tenth Circuit ruled that

“any prohibition of sectarian instruction where other instruc-

tion is permitted is inherently non-neutral with respect to

viewpoint” /d The court explained that “instruction be-

comes ‘sectarian’ when it manifests a preference for a set of

religious beliefs” /d It concluded that “because there is no

nonreligious sectarian instruction (and indeed the concept is a

contradiction in terms), a restriction prohibiting sectarian

instruction intrinsically favors secularism at the expense of

religion.” Id (emphasis added) Milford’s restriction against

religious instruction is similarly unconstitutional. Aside from

its prohibition on religious instruction, it otherwise allows for

“instruction in any branch of education,” (Pet App D1),

9

thereby favoring secular instruction and viewpoints over

religious ones

The Fifth Circuit has noted as much In commenting on

this very case and the Milford Policy, it noted that “there is a

powerful argument that such a prohibition against the use of

facilities for a religious purpose is facially invalid as

inevitably presenting a viewpoint discrimination” Campbell

v St. Tammany Parish Sch. Bd., Nos. 99-31071, 99-31140,

2000 WL 1597749, at *17 (Sth Cir Oct. 26, 2000).

2 Even if Milford were able to articulate some coherent

way of defining religion as content and not as a viewpoint, its

Policy would still run afoul of the Free Speech Clause. That

is because the government cannot define lines of exclusion by

reference to a constitutionally-protected class—in this in-

stance, that of religion Such a definition amounts to an

“elementary violation” of the First Amendment. Grace Bible

Fellowship v. Maine Sch. Admin. Dist., 941 F 2d 45, 48 (ist

Cir 1991) (noting that exclusion of religious groups from a

public forum violates First Amendment)

To be sure, in a limited public forum public officials can

regulate speech content with rules that are “reasonable in light

of the purpose served by the forum and are viewpoint

neutral” Cornelius, 473 US. at 806 (citing Perry Educ.

Ass'n, 460 US. at 49) But, short of enforcing a compelling

State interest, can a forum regulation ever be constitutionally

“reasonable” if it draws a line of exclusion that is defined

exclusively by reference to a constitutionally-suspect class?

This question is easily answered by considering a few

examples. Under the Constitution, could a State official

“reasonably” set up an expressive forum that was widely

available to community groups or programs, excluding only

groups of African-Americans, Native-Americans, or Irish-

Americans? Could the State “reasonably” create a rule that

excluded only programs run by, or that highlighted issues

uniquely affecting, women? Absent something considerably

10

more than a rational basis, the government cannot single out

such groups for exclusion. See United States v. Virginia, 518

US. 515, 546 (1996) (invalidating Virginia’s “categorical

exclusion” of women from the Virginia Military Academy

because the State fell “‘far short of establishing the “exceed-

ingly persuasive justification” that must be the solid base for

any gender-defined classification”) (internal citation omitted),

Loving v. Virginia, 388 U.S. 1, 11 (1967) (concluding that

anti-miscegenation statutes “rest solely upon distinctions

drawn according to race” and are therefore unconstitutional),

Brown v. Board of Educ., 347 U.S. 483 (1954) (invalidating

laws requiring and permitting racial segregation in public

schools)

If any constitutionally-protected group is to be excluded

from a limited public forum, it must be on the basis of

constitutionally-neutral criteria that sweep more widely than

any particular protected class. For example, a school could

limit the use of its facilities to youth-oriented activities

While such a policy would exclude programs held by or for

adult women, it would do so based on constitutionally-neutral

criteria that also would exclude a wide range of unprotected

groups, such as the Rotary club, the community garden club,

or the local political forum. Similarly, a school could limut

the after-hours use of its facilities to political activities. Im

such cases, programs dedicated to addressing gender issues of

racial issues would be excluded, except to the extent that

those programs also sponsored political activities.

But Milford has not used constitutionally-neutral criteria to

exclude a general class of programs that simply happens to

include religious programs Rather, it has used the constitw-

tuonally-protected class of religion itself to define the line of

exclusion °

° The Policy does so in two places. First, it starkly and globally forbids

any use of school premises for “religious purposes (Pet App D2) No

Under Church of the Lukumi Babalu Aye v. City of Hialeah,

508 U.S. 520 (1993) (“Lukumi”), “[a] law burdening religious

practice that is not neutral or not of general application must

undergo the most rigorous of scrutiny.” /d. at 546. Thus,

religion is a protected constitutional class that is necessarily

entitled to the highest protection from laws that target religion

for inferior treatment. /d. at 534 (condemning the use of

“[o]fficial action that targets religious conduct for distinctive

treatment”), see also McDaniel v. Paty, 435 U.S. 618 (1978)

(state law disqualifying the clergy from public offices invalid

because it imposed special disabilities on the basis of

religious status).

Thus, any policy that singles out religion for exclusion

cannot be “constitutionally reasonable,” short of being justifi-

ed by a compelling State interest. The only such interest that

has been suggested in this context is the Establishment

Clause. For the reasons articulated below, however, the

Establishment Clause neither mandates nor justifies the

Milford Policy or others like it.

attempt 1s made to include religion with a number of other cxcluded uses

or categones—-the exclusion is made on the basis of religion alone.

Second, paragraph four, which allows for “meetings” and “events”

charging admission fees, explicitly excludes such programs if held by a

“relugious sect or denomination.” (Pet. App. Dl.) While other secular

organizations are also excluded under this section, the law on which the

section is modeled, NY. Educ. Law § 414, excludes only religious groups

from holding fundraising events. (Pet. App. C4-CS.) Neither version can

be “reasonable” as a constitutional matter because they both draw am

exclusionary line along the boundary of a constitutionally-protected class,

albeit at varying levels of sophistication.

12

B. Under The Principles Governing A Designated

Full Public Forum, Milford Cannot, Absent A

Compelling Interest That Is Not Present Here,

Exclude Religious Groups Based On Either

Viewpoint Or Content.

The Milford Policy also runs afoul of the requirements

applicable to full public forums. In commenting on an access

policy based on the same statutory scheme at issue here, this

Court in Lamb's Chapel agreed there is “considerable force”

to the argument that such regulations create a designated

public forum. Lamb's Chapel, 508 US. at 391 (commenting

on the uses permitted under N.Y. Educ. Law § 414)’

State officials can designate a public forum either “by

policy or by practice.” Perry Educ. Ass'n, 460 U.S. at 47 Ifa

combination of “policy and practice” indicates that the

government has opened up a public property to “the public at

large for assembly and speech,” the forum should be treated

the same as a traditional public forum. Cornelius, 473 US at

802

Cornelius describes precisely the situation here Milford

has granted access to a nwmber of other youth groups with

purposes similar to that of the Good News Club For

example, the Boy Scouts, the Girl Scouts, and the 4-H Club

all strive to inculcate values, morals, and even spiritual princi-

ples. (Pet. App. Al2.) Further, the Milford superintendent

testified that a wide range of community groups would be

allowed to use school facilities for a variety of purposes,

including political debates, Christmas programs, movie

screenings, and moral instruction through literature such as

Aesop’s fables. (Pet. App. E4-E5 )

' The Court did not have to decide that question in Lamb's Chapel

because it found the restrictions at issue invalid even under the limited

public forum standard

13

Although a wider range of groups had used the facilities at

issue in Lamb's Chapel than have used the facilities in this

case, that fact is more than offset by Milford’s adoption of a

written access policy that is substantially broader than its

counterpart in Lamb's Chapel. 508 US. at 391 nS.

Milford’s Policy allows secular groups to use its facilities for

seven of the purposes set out in N.Y. Educ. Law § 414. (Pet.

App. DI-D2.) The school in Lamb's Chapel had adopted

only two of those categories. Lamb's Chapel, 508 US. at

387. Beyond the “social, civic and recreational and entertain-

ment events” authorized by the schools in both cases, Milford

expressly allows for “instruction in any branch of education,

learning or the arts.” (Pet. App. DI-D2.) It also allows for

“meetings [and] entertainment events.” /d.

There are, moreover, no exclusions as to program content

or subject matter, except of course as to religion. Because the

Policy excludes religion from the forum, Milford officials

appear to believe that the facilities qualify as only a limited

public forum. But this cannot be correct. As the First Circuit

remarked in a similar case, the fact that within the forum

“anyone could be promoted except Jesus, [and] that all

religions were excluded, did not mean that a broad access

forum” became a “legally limited” forum Grace Bible

Fellowship, 941 F 2d at 47. Such an exclusion is not a

reasonable regulation governing the use of a limited forum

Rather, it is nothing less than unconstitutional government

“censorship.” /d. at 48

Indeed, the category of a designated public forum would

lose all meaning if a State were able to change a full public

forum into a limited forum merely by excluding one class of

speech The very idea of a designated general public forum is

that the State cannot discriminate as to content without a

compelling State interest. Perry Educ. Ass'n, 460 US at 47

It is one thing for a State affirmatively to open a forum for a

limited purpose or purposes, such as yowth programs, or

political debates, or civic business. But surely it cannot do

14

the reverse open a forum for nearly all purposes and topics,

exclude only a few topics—or one topic, as it has done here—

and then expect the forum to be treated as a limited public

forum. “Were it otherwise, a public body could unilaterally

narrow a designated public forum so as to exclude disfavored

groups, cynically circumventing the Supreme Court’s public

forum jurisprudence ” Campbell, 2000 WL 1597749, at *26

(Jones, J, dissenting) Courts should not tolerate “[sJuch

obvious machinations ” /d.

Accordingly, this Court should hold that N Y Educ Law

§ 414 and the Milford Policy create a general, open public

forum for after-hours usage The Court should also rule that

the government cannot engage in viewpoint or content

discrimination absent a compelling interest, which has not

been asserted here

C. The Establishment Clause Does Not Provide A

Basis To Exclude Religious Instruction Or

Worship Because, Under A Neutral And

Properly Implemented Facilities Use Policy,

Milford Neither Supports Nor Endorses Religion.

Establishment Clause concerns cannot justify the exclusion

of a religious subset of taxpayers from equal access to their

public facilities As noted above, it has long been a common

practice to allow religious groups to conduct services and

meetings in public schoolhouses, even in States with restric-

tive State constitutional establishment clauses © That practice

* See cases cited supra note 4, see generally C T Foster, Annotation.

L'se of Public School Premises for Religious Purposes During Nonschool

Time, 79 ALR. 2d 1148, 1150 (1961 & 2000 Supp ) (“In pioneer times

and during the era of the one-room country schoolhouse it probably

was not at all unusual, in many rural and village areas. for the residents of

the neighborhood to use the public schoolhouse as a mecting place for

many community nonschool purposes, during nonschool time Sometimes

the school building was used for holding Sunday church services or

Sunday school meetings. or for evangelical or other religious meetings in

15

is fully consistent with the approach set out in Lemon v.

Kurtzman, 403 U § 602 (1971), under which the State must

act with a secular purpose, its acts cannot have the primary

effect of advancing or inhibiting religion, and it cannot act in

a way that produces excessive entanglement between church

and State”

As to the first requirement allowing public buildings to be

used on the same terms as non-religious uses 1s not an imper-

missible legislative purpose This Court long ago held that

the creation of a public forum has a secular purpose, even if

religious speech is allowed in that forum Board of Educ. v

Mergens, 496 US 226, 248 (1990), Widmar v. Vincent, 454

US 263, 271 (1981) And, more generally, accommodating

religion is also an acceptable secular purpose See

Corporation of the Presiding Bishop vy. Amos, 483 US 327,

338 (1987) (holding that a Title VII statutory provision that

accommodates religion has a legitimate secular purpose),

accord Hobbie vy Unemployment Appeals Comm'n, 480 U §

136, 144-45 (1987), Wisconsin v Yoder, 406 US 205, 235

n 22 (1972), Walz vy. Tax Comm'n, 397 U S 664, 673 (1970)

Moreover, as shown below in Section III, the policy at issue

here does not avoid entanglement, it creates it

Thus, if Milford’s Policy is to be justified by Establishment

Clause requirements, it can only be because of the effect that a

contrary policy might have in advancing religion But a

properly crafted use policy would not have impermissible

effects, and thus there is no Establishment Clause justification

the evenings, often because it was the only available building or hall in the

commuruty which could accommodate such a gathenng °)

* More recent decisions have tended to merge the last prong with the

second prong, and the question of whether the government “endorses” or

reasonably appears to “endorse” a religion has emerged as a key clement

of the second prong, especially in cases dealing with pnvate speech in

public or limited public forums) Lynch vy. Donnelly, 465 US 668, 690

(1984) (O'Connor, J, concurnng), see Capitol Square Review, 515 US at

774-75, Board of Educ vy Mergens, 496 US 226, 250 (1990)

16 a

for Milford’s Policy or for the underlying Bronx Household

approach. See Fairfax Covenant Church v. The Fairfax

County Sch. Bd., 17 F.3d 703 (4th Cir. 1994) (Establishment

Clause does not justify policy excluding religious groups

from public school facilities), Gregoire v. Centennial Sch.

Dist., 907 F.2d 1366, 1380 (3d Cir. 1990) (“[G]ranting a

religious organization permission to use school facilities does

not imply an endorsement of religious goals.”’).

1. First, it is well settled that any benefit a religious group

receives from equal access to a public forum is only

“incidental” and does not “violate the prohibition against the

‘primary advancement’ of religion” Widmar, 454 US. at

273 (access to public university open forum only incidentally

benefits religious student groups), Mergens, 496 US. at 248

(equal access to secondary school facilities does not

impermissibly advance religion) This is because of the

“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.” Mergens, 496 US. at 250.

In defending their Policy and the Bronx Household \ine of

cases, Respondents ignore this crucial distinction. They rely

heavily on reasoning drawn from cases involving government

actors directly engaged in religious speech,'’ religious

instruction occurring on school grounds during the school

day,'' and prayers at programs officially sponsored and run

by school officials? (Resp. Br. 8-10.) This case, however, is

about private actors engaging in religious speech in a public

forum after the school day at programs sponsored and run by

a private community group. (Pet. App. El-E2, H1-H2.)

' Engel v. Vitale, 370 U.S. 421 (1962).

'' \feCollum v. Board of Educ., 333 U.S. 203 (1948).

'? Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290 (2000), Lee vy.

Weisman, 505 U.S. 577 (1992).

—_—_——— ——

17

Merely making a public forum available to the Good News

Club for private religious speech does not amount to

unconstitutional “support” for religion. Lamb's Chapel, 508

US. at 395, Mergens, 496 U.S. at 248, Widmar, 454 US. at

273.

2. Nor would the Good News Club’s proposed use violate

the endorsement test sei forth by the concurrence in Capitol

Square Review, 515 U.S. at 777, 780. This test examines a

number of factors to decide if the State’s relationship to

private religious speech would convey endorsement to a well-

informed, reasonable observer. These factors include whether

a religious group will “dominate a public forum,” the

“fortuity of geography,” and the “nature of the particular

public space.” /d. at 777-78.

As to the first factor, absent some “empirical evidence that

religious groups will dominate [an] open forum,” a court

cannot use forum domination to find State endorsement of

religion. Widmar, 454 U.S. at 275. The “mere speculation”

that use of a forum by a religious group over a period of time

might “ripen into a violation of the Establishment Clause,

absent any facts suggesting that probability, is not a

justification sufficiently compelling to burden free access to

the forum.” Fairfax Covenant Church, 17 F.3d at 708.

In the present case, not only are the school facilities used by

a number of different community-based youth groups, but

they are also open to virtually all other types of community

'* Indeed, a plurality in Capito! Square Review ruled that as long as

forum access rules are truly neutral, “purely private religious speech

connected to the State only through its occurrence in a public forum” can

never offend the Establishment Clause. Capitol Square Review, 515 U.S.

at 767. This neutrality approach to Establishment Clause concerns was

recently supported by the plurality in Mitchell vy. Helms, 120 S. Ct. 2530

(2000). The Good News Club's proposed use of Milford facilities would

come well within this neutrality rule, as nobody has questioned the

genuinely private nature of the Club's religious speech or the neutrality of

its proposed access.

18

groups, except of course religious groups. There is no

evidence or even claim that the Good News Club dominates,

or is reasonably anticipated to dominate, Milford’s facilities.

As to geography, nature of public space, and the time of the

program: Lamb's Chapel gave four reasons why the display

of a Christian film series in a public high school would not

convey State endorsement. First, the film series was not

shown “during school hours.” Second, the showing was not

“sponsored by the school.” Third, the film series was “open

to the public.” Fourth, the school property had been used by

“a wide variety of private organizations.” Lamb's Chapel,

508 US. at 395. The proposed Good News Club meetings

satisfy all these criteria) A wide range of community groups

use, or are eligible to use, the facilities. (Pet. App. E4-E5 )

The Club’s meetings are open to all interested children

“(provided they gain their parent’s permission), irrespective of

their personal creed or ideology. (Pet. App. El-E2.) The

Club’s meetings are not sponsored or otherwise supported by

the school, and no teachers or other personnel from the school

attend the meetings. (Pet. App. E2.)

Further, The Good News Club proposed to use Milford’s

facilities at 3 pm. (Pet. App. C3.) The concern over the

timing of a religious event is greatly diminished when the

event takes place “after instructional hours when student

attendance is no longer compelled.” Good News Good Sports

Club v. School Dist., 28 F.3d 1501, 1510 (8th Cir. 1994).

While the record does not indicate precisely when the

Milford school day ends, even if it ends near 3 pm. there

would still be a sufficient separation between school activities

and those of the Club to avoid the appearance of the Club’s

meetings being part of the school day. “Nothing in the first

amendment postpones the right to religious speech until high

school, or draws a line between daylight and evening hours.”

Hedges v. Wauconda, 9 F.3d 1295, 1298 (7th Cir. 1993).

Here, the combination of (1) the change of location, from

classrooms to cafeteria; (2) the change of personnel, from

19

school teachers to outside leaders, and (3) the change of

audience, with a mixing of grade levels and the addition of

children from outside the school provides the necessary break

between the school day and Club meetings to avoid the

appearance of government endorsement. '*

In applying the rigid Bronx Household approach, the lower

courts made no real inquiry into the connection between the

activities of the school and those of the Club. Under the

reasoning below, the outcome would have been no different if

the Club had met at 5 pm., or 10 p.m., or on the weekends.

Likewise, it would not have mattered if the Club’s activities

had been for toddlers, teenagers, or twenty-somethings.

Under Bronx Household, the religious nature of the activity

absolutely barred the Club’s religious use of any Milford

facility, at any time, for anyone. Such a rule plainly goes

beyond the demands of the Establishment Clause.

3. Respondents’ concerns about “captive” child audiences

do not alter this conclusion. All of the children at the Good

News Club meetings attend voluntarily, and with parental

permission. (Resp. Br. 25, Pet. App. E2.) Moreover, the

argument that an elementary-aged audience is less capable of

distinguishing between State neutrality and State endorsement

than the presumably older audience in the Lamb's Chapel

case is unpersuasive for two reasons.

First, while the audience for the Christian film series in

Lamb's Chapel was largely comprised of teens and adults, it

is likely that younger children also attended those meetings.

'* Amici’s use of public facilities has an even more attenuated link to

school-day events or regular government business than is present in this

case. That is because the use of public forums by amici will occur

primarily on the weekends or later in the evenings, far removed from the

hours of traditional government activity. Absent forum domination or

preferential treatment, this type of use by religious groups falls well inside

the constitutional boundaries set out in Capitol Square Review and Lamb's

Chapel.

20.

The Court did not express concern that younger children

would be uniquely influenced by the religious films shown in

the public forum. Other courts have shown similar regard for

the ability of young children to distinguish between State

speech and private speech. Good News Good Sports Club, 28

F.3d at 1509 (eleven to 15-year-olds capable of discerning

that religious club’s activities from 3-4 p.m. on school

grounds were not State speech), Hedges, 9 F.3d at 1298

(junior high school students can see that religious literature

handed out immediately prior to and after class is private

rather than State-sponsored speech)

Second, the argument of youthful impressionability is a

double-edged sword. It defies common sense to conclude

that, while young children might view a religious organi-

zation’s use of public property as an endorsement from the

State, they would not also perceive the organization’s

exclusion from those facilities as State hostility toward

religion. When members of the Good News Club see the Boy

Scouts, the Girl Scouts, and the 4-H Club use school facilities

after hours, but they are forced to meet elsewhere because

their Club—by reason of its religious affiliation—cannot

meet on public property, they will inevitably perceive that

“they are outsiders, not full members of the political

community.” Lynch v. Donnelly, 465 US. 668, 688 (1984)

(O’Connor, J., concurring). This is precisely the type of State-

sponsored message that is prohibited by the Establishment

Clause.

4. Indeed, for children as well as adults, the primary effect

of the Policy is not to avoid endorsement, but to “demonstrate

_. hostility toward religion.” Rosenberger v. Rector &

Visitors, 515 U.S. 819, 846 (1995) (O’Connor, J., concurring)

(citing Mergens, 496 U.S. at 248). It is well settled that “[t}he

Religion Clauses .. . provide no warrant for discriminating

against religion.” Board of duc. v. Grumet, 512 U.S. 687,

717 (1994) (emphasis added).

ee eee Oe ee

21

Stated differently, a message of government hostility

toward religion is no more constitutionally permissible than a

message of endorsement. “What is crucial is that a govern-

ment practice not have the effect of communicating a

message of government endorsement or disapproval of

religion.” Lynch, 465 U.S. at 692 (O’Connor, J., concurring)

(emphasis added). As this Court explained in rejecting an

Establishment Clause challenge to a policy allowing student

religious clubs equal access to public high school facilities:

[I]f a state refused to let religious groups use facilities

open to others, then it would demonstrate not neutrality

but hostility toward religion. “The Establishment Clause

does not license government to treat religion and those

who teach or practice it, simply by virtue of their status

as such, as subversive of American ideals and therefore

subject to unique disabilities.”

Mergens, 496 U.S. at 248 (1990) (emphasis added) (quoting

McDaniel, 435 U.S. at 641 (Brennan, J, concurring)). |

Milford’s Policy categorically excludes religious programs

from its facilities. Thus, the Policy “foster[s] a pervasive bias

or hostility toward religion,” and thereby “undermine[s] the

very neutrality the Establishment Clause requires.”

Rosenberger, 515 U.S. at 845-46. Therefore, contrary to the

flawed reasoning employed by the courts below, the

'’ Moreover, although States are forbidden from expressing messages

of cither endorsement or hostility toward religion, a message of hostility is

arguably of greater constitutional concern. That is because it is prohibited

not only by the Establishment Clause itself, but also by the Free Exercise

and Free Speech Clauses, which collectively insulate religious belief,

practice, and expression from official criticism by a State orthodoxy. As

this Court noted nearly 60 years ago, “{i]f there is any fixed star in our

constitutional constellation, it is that no official, high or petty, can

describe what shall be orthodox in politics, nationalism, religion or other

matters of opinion.” West Virginia State Bd of Educ. y. Barnette, 319

U.S. 624, 642 (1943).

22

Establishment Clause neither mandates nor justifies the

Policy. '®

Il. THE EXCLUSION OF RELIGIOUS INSTRUC-

TION OR WORSHIP FROM PUBLIC FACIL-

ITIES OTHERWISE OPEN TO COMMUNITY

GROUPS VIOLATES THE FIRST AMEND-

MENT’S FREE EXERCISE CLAUSE,

Policies such as that employed by Milford also violate the

First Amendment's Free Exercise Clause. U.S. Const.

amend. I (“Congress shall make no law respecting an estab-

lishment of religion, or prohibiting the free exercise

thereof”).'’ Under this Court’s decision in Employment

Division v. Smith, 494 U.S. 872 (1990), laws that are neutral

towards religion and generally applicable may usually be

justified by a “reasonable” government purpose, even if they

burden religious practice. See id. at 879. In sharp contrast,

however, “[a] law burdening religious practice that is not

neutral or not of general application must undergo the most

rigorous of scrutiny.” Lukumi, 508 U.S. at 546. The same is

true of facially-neutral laws that burden other constitutional

'© If this Court nevertheless believes there is some question whether

there is enough separation between the Club’s meetings and the School,

the Court should squarely reject the Bronx Household standard and then, if

necessary, remand the case for adjudication under the proper standard.

'" While Petitioners have focused on the free speech aspects of their

First Amendment challenge, because the speech at issue here is religious

speech, the resolution of this case necessarily implicates closely

intertwined Free Speech, Free Exercise, and Establishment Clause

jurisprudence. See, e.g., Mergens, 496 U.S. at 250 (plurality opinion

noting that “there 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”). Further, this Court has previously considered

arguments raised only in an amicus brief, see, e.g., Teague v. Lane, 489

U.S. 288, 300 (1989) (plurality) (deciding case on the basis of a claim

that was “raised only in an amicus brief”). The Court should do the

same here given the important free exercise principles at stake.

23

rights in addition to religious freedom. Smith, 494 US. at

878, 881, 882. Policies such as the one at issue here violate

the Constitution’s Free Exercise Clause because, with no

legitimate justification, they (1) single out religion for inferior

treatment and (2) burden the exercise of rights in addition to

freedom of religion.

1 This Court has always regarded laws that single out

religion with the deepest suspicion. “A law that targets

religious conduct for distinctive treatment or advances legiti-

mate governmental interests only against conduct with a

religious motivation will survive strict scrutiny only in the

rarest cases.” Lukumi, 508 US. at 546. As the Sixth Circuit

noted, this Court “never intended Smith and Lukumi __. to

affect the methodology of dealing with those laws or rules

that directly burden religion because they are not neutrally

and generally applicable.” Hartmann v. Stone, 68 F 3d 973,

978 (6th Cir. 1995) Laws that are not both neutral towards

religion and generally applicable must be justified by “a

compelling State interest and [must be] narrowly tailored to

achieve that interest” /ukumi, 508 US. at 533. see

McDaniel, 435 US. at 628-29

In Lukumi, this Court found that local government

restrictions on ritual animal sacrifice were neither “neutral”

nor “generally applicable,” as only religious animal killing

was Outlawed. Lukumi, 508 U.S. 536-37. Many other types

of animal killing, including hunting and commercial

slaughtering, were exempted from the regulations /d This

Court concluded that no compelling interest had been shown,

and thus struck down the regulatory scheme. /d. at 547

In deciding whether a law is neutral towards religion, “we

must begin with its text, for the minimum requirement of

neutrality is that a law not discriminate on its face” /d at

24

$33. It is beyond dispute that “a rule that uniformly bans all

religious practice is not neutral.” Hartmann, 68 F 3d at 978.

In this case, the text of the Milford Policy directly targets

religion for inferior treatment. “School premises shall not be

used by any individual or organization for religious pur-

poses.” (Pet. App. D2.) “Religious purposes” are the only

objectives excluded by the Policy, and—like the supporting

N.Y. Educ. Law § 414—therefore fall directly under the

Smith and Lukumi prohibition against laws that target religion

for inferior treatment.

2. An alternative reason to apply the compelling State

interest test is that the Milford Policy burdens a combination

of rights. As this Court explained in Smith, when even a

neutral, generally-applicable law burdens “the Free Exercise

Clause in conjunction with other constitutional protections,

such as freedom of speech and of the press” the Constitution

requires the application of the compelling interest test. Smith,

494 US. at 881, 882

Milford’s treatment of the Good News Club presents a

“hybrid situation” in which several rights are involved. Here,

the Club’s free exercise, free speech, and assembly rights are

all implicated Widmar, 454 US. at 273 n.13 (claim to use

public forum also “implicates First Amendment rights of

speech and association”). For this further reason, the com-

pelling interest analysis should apply.

3. The only proffered justification for the inferior treatment

of religion in Milford’s Policy has been an alleged

“reasonable” need to comply with the Establishment Clause

(Pet. App. C14.) The problem with this argument is that the

'® In Hartmann, Army regulations prohibited on-base, in-home day-care

providers, selected at the parents’ choice and expense, “from having any

religious practices, such as saying grace or reading Bible stories, during

their day-care program.” The court found it “beyond peradventure” that

the regulations were neither neutral nor generally applicable. //artmann,

68 F 3d at 975, 978.

25

State must show more than a “reasonable interest” to

discriminate against religion’ As discussed above, it must

show a “compelling state interest,” and it must show that its

restrictions are narrowly tailored to meet that interest.

Neither Milford nor New York has made either showing.

For the reasons stated in section I(C) above, the

Establishment Clause does not require all religious activity to

be excluded from Milford’s facilities. If some specific aspect

of the Club’s proposed use of the facilities creates too strong

a connection between the School and the Club, Milford

should explore less restrictive alternatives short of absolute

exclusion to strengthen the separation between the two

entities. But Milford has not explored less restrictive means

of addressing such concerns. The Policy therefore violates the

free exercise rights of the Good News Club.

ill. MILFORD’S POLICY EXCESSIVELY ENTANG-

LES CHURCH AND STATE BY REQUIRING

OFFICIALS TO DRAW DUBIOUS DISTINC-

TIONS BETWEEN RELIGIOUS INSTRUCTION

AND SECULAR INSTRUCTION PRESENTED

FROM A RELIGIOUS “VIEWPOINT.”

Perhaps the most troubling feature of Milford’s Policy, and

the Bronx Household approach on which it is based, is its

requirement that State officials scrutinize proposed religious

events to decide if they are “merely” the presentation of a

religious viewpoint or if they consist of forbidden religious

instruction or worship. (Pet. App. Al6); Bronx Household,

127 F.3d at 214-15. This creates an entanglement of church

and State that has long been an Establishment Clause concern

Distinguishing between even the broad categories of

viewpoint and content is itself very difficult, as viewpoint

discrimination “is but a subset or particular instance of the

more general phenomenon of content discrimination.”

Rosenberger, 515 U.S. at 830-31. But, especially in the realm

of religion, “the distinction is not a precise one __ . [for while]

26

religion may be a vast area of inquiry, . . . it also provides...

a standpoint from which a variety of subjects may be

discussed and considered.” /d. at 831.

Deciding where viewpoint ends and content begins in the

highly sensitive area of religious activity will inevitably

involve State officials in highly intrusive and subjective

inquiries into the realm of religion. There is “no more

disrupting influence apt to promote rancor and _ ill-will

between church and State than this kind of surveillance and

control. They are the very opposite of the ‘moderation and

harmony’ between church and State which Madison thought

was the aim and purpose of the Establishment Clause.”

Lemon, 403 US. at 637 (Douglas, J., concurring).

This Court dealt with the entanglement problems created by

a very similar distinction in Widmar. There, the dissent tried

to draw a distinction between allowing religious speech as

opposed to religious worship into a public forum. Widmar,

454 US. at 283-84. The majority opinion was highly critical

of this distinction and rejected it on fuur grounds, all of which

also apply to the Bronx Household approach. /d. at 270, 272

nil.

First, the distinction between religious worship and speech

lacks “intelligible content,” providing insufficient notice of

what is prohibited. As noted in Widmar, it is virtually impos-

sible to define the point at which forms of religious speech—

such as singing, teaching, and reading—metamorphose into

worship. /d. at 270. In this case it is equally difficult to

locate the line, assuming it exists, between speech from a

religious viewpoint, which is permitted under Milford’s

Policy, and religious instruction or worship, which is not

Much religious instruction concerns matters that are viewed

as secular, including family matters, sexual behavior, business

relationships, and other general ethical matters. The Biblical

books of Proverbs, Ecclesiastes, Romans, and James, as well

as Jesus’ teachings in the Sermon on the Mount, attest to this

fact.

27

How then would a government official determine whether a

lesson on the Apostle Paul’s teachings about sexual conduct

constitutes speech from a religious viewpoint, or impermis-

sible religious instruction? How would that official catego-

rize a Classical vocal rendition of the “Lord’s Prayer,” a piece

of music viewed by some as high culture, by others as

religious instruction, and by still others as adoration and

worship? While an official may attempt to evaluate these

presentations based on the style, manner, and tone of delivery,

doubtless the decision would ultimately depend on the

official’s own religious viewpoint. There simply are no

neutral, logically compelling, objective principles on which to

base a decision.

In short, the distinctions required by the Bronx Household

approach do not make sense practically, theologically, philo-

sophically, or legally. As this Court has previously recog-

nized, any attempt “to determine which words and activities

fall within ‘religious worship and religious teaching’. -

could prove ‘an impossible task in an age where many and

various beliefs meet the constitutional definition of religion.’”

Widmar, 454 US. at 272 n.11 (internal cites omitted).

Second, even if such distinctions had any meaning as a

theoretical matter, the process of making them would be

highly intrusive. Indeed, as this Court recognized in Widmar,

“[mJerely to draw the distinction would require” a public

official “to inquire into the significance of words and prac-

tices to different religious faiths, and in varying circum-

stances of the same faith Such inquiries would tend

inevitably to entangle the State with religion in a manner

forbidden by our cases.” /d. at 270

The intrusion inherent in such inquiries is aptly illustrated

by the manner in which the lower courts have scrutinized the

activities of the Good New Club in this case. The Second

Circuit claimed that "it is not difficult for school authorities to

make the distinction between the discussion of __ _ a religious

viewpoint and the discussion of __ religious instruction and

28

prayer.” (Pet. App. Al6.) Yet, in drawing this supposedly

simple distinction, the lower courts spent between one third to

one half of their opinions closely examining and weighing

each activity of the Club for its religious significance. (See

Pet. App. A3-A10, A1S-A18, C15-C24, C31.) After culling

through the details of songs and scripture reading, memory

lessons and missionary stories, the Second Circuit disap-

provingly opined that the “Good News Club goes far beyond

merely stating its viewpoint. The Club is focused on teaching

children how to cultivate their relationship with God through

Jesus Christ.” (Pet. App. Al7.) This is just the kind of intru-

sive analysis and negative judgment on religious views that

created concern in Widmar about standards beyond “the

judicial competence” of public officials. Widmar, 454 U.S. at

270.

Third, even if the distinction drawn in Bronx Household

had a basis in logic and did not require an offensively intru-

sive inquiry into religious matters, enforcing that distinction

would create its own problems. Here, as in Widmar, there

would be a “continuing need to monitor group meetings to

ensure compliance with the law,” representing an almost

insurmountable entanglement problem. Widmar, 454 U.S. at

272 n.11.

Making the distinction required by Bronx Household,

insofar as it is meaningful, will turn on the manner in which

songs, readings, or other religious utterances are expressed.

But who wil! ensure that the conductor of the Christmas choir

does not break out into “forbidden” prayer before or after the

concert? Who will stand guard to prevent the discussion on

life’s origins from “degenerating” into a call to trust in the

Great Creator? Who will restrain the faithful at a gospel

music concert from breaking out in fervent—yet “illicit”—

“Hallelujahs,” “Amens,” and “Praise the Lords,” or from

merely bowing their heads in quiet prayer?

But even if making and monitoring such distinctions did

not present enormous practical difficulties, it is not at all

29

obvious why they should have any constitutional significance.

As the Widmar Court asked, why would the Constitution

“require different treatment for religious speech designed to

win religious converts .. . than for religious worship by

persons already converted[?]” /d.

So too here. The Bronx Household approach allows speech

on “secular” topics from a religious viewpoint, even though

such speech is often used in Christian apologetics with the

aim of winning converts to a religious viewpoint. Examples

of this are Biblical viewpoints on history, archaeology, and

questions of the origins of life and the universe. Yet, the

Bronx Household approach would ban similar speech if it

were presented as worship for the already converted. Here, as

in Widmar, there is no sound constitutional reason to treat the

two differently.

In sum, as in Widmar, the Bronx Household approach

requires distinctions founded on unintelligible criteria in an

area beyond the competence of public officials. It raises

insurmountable problems of enforcement. It creates distinc-

tions of no clear constitutional relevance. And it is forbidden,

not required, by the Establishment Clause.

** ee *

The effect of the Bronx Household approach is to diminish

and severely limit this Court’s ruling in Lamb's Chapel

outlawing religious discrimination in access to public forums.

That approach has denied a wide range of religious groups,

including the Good News Club, access to public facilities that

are otherwise available to almost every other type of

community group imaginable. Such exclusions are unconsti-

tutional, and the rule on which they are based should be

rejected in favor of an approach that accommodates the rights

and desires of religious people to use public property on equal

terms with other taxpayers, consistent with legitimate

Establishment Clause guidelines.

30

CONCLUSION

For the foregoing reasons, as well as those set forth in

petitioners’ brief, the decision below should be reversed

Respectfully submitted,

CARTER G. PHILLIPS

GENE C. SCHAERR*

NICHOLAS P. MILLER

MICHAEL S. LEE

REBECCA K. SMITH

SIDLEY & AUSTIN

1722 Eye Street, N.W.

Washington, D.C. 20006

(202) 736-8000

Counsel for Amici Curiae

November 30, 2000 * Counsel of Record

APPENDIX

la

APPENDIX

STATEMENTS OF INTEREST

The African Methodist Episcopal Zion Church

The African Methodist Episcopal Zion Church, also known

as the AME. Zion Church, was founded in 1796, and is

headquartered in Charlotte, North Carolina) AME. Zion

Church members share a common heritage with Christians of

every age and nation according to the witness and teachings

of the Apostles of Jesus Christ. The Church has a member-

ship of approximately |.5 million and has a vested interest in

ensuring that its members and local congregations have equal

access to public facilities

lhe American Muslim Council

The American Muslim Council (AMC) was established in

1990 to increase the effective participation of American

Muslims in the American public square. The American

Muslim population, estimated at seven million, comprises

Americans of all races and ethnic backgrounds. Because

American Muslim organizations, like other Christian, Jewish,

and secular organizations that are part of American civil

society, frequently take advantage of programs that make

space in schools and other public buildings available for rent

when they are not in use for their primary purposes, AMC has

a deep interest that such programs not be biased against

organizations whose activities are, or may be perceived as,

religious in nature

The Baptist Joint Committee on Public Affairs

The Baptist Joint Committee on Public Affairs is composed

of representatives from various national and regional

cooperating Baptist conventions and conferences in the

United States. The Baptist Joint Committee's supporting

bodies include: Alliance of Baptists, American Baptist

2a

Churches in the U.S.A, Baptist General Conference, Cooper-

ative Baptist Fellowship, National Baptist Convention of

America, National Baptist Convention, U.S.A., Inc., National

Missionary Baptist Convention, North American Baptist

Conference, Progressive National Baptist Convention, Inc.,

Religious Liberty Council, Seventh Day Baptist General

Conference, and Southern Baptists through various state

conventions and churches. Many Baptist congregations meet

in public school facilities after hours while their worship

centers and education buildings are being constructed or

renovated. Because of the congregational autonomy of

individual Baptist churches, the Baptist Joint Committee does

not purport to speak for all Baptists.

The First Church of Christ, Scientist

The First Church of Christ, Scientist, in Boston,

Massachusetts, is “The Mother Church” of one of the major

indigenous American religious denominations—Christian

Science. The Church and its branch Christian Science

churches and societies are collectively referred to as the

Church of Christ, Scientist. There are more than 2,000 local

Christian Science congregations existing in over sixty-five

countries and in all fifty states and the District of Columbia.

At least one of the local congregations currently meets in a

public school. The Church is aware that a number of other

congregations met in public facilities on an interim basis

before obtaining their own buildings or private space. The

First Church of Christ, Scientist, seeks to advance and

preserve religious rights for all

lhe General Assembly of the Presbyterian Church (U.S.A)

Clifton Kirkpatrick, as Stated Clerk of the General

Assembly, is the senior continuing officer of the highest

governing body of the Presbyterian Church (US.A.). The

Presbyterian Church (U.S.A.) is the largest Presbyterian

denomination in the United States, with approximately

3a

2,700,000 active members in 11,500 congregations organized

into 173 presbyteries under the jurisdiction of 16 synods.

The General Assembly does not claim to speak for all

Presbyterians, nor are its deliverances and policy statements

binding on the membership of the Presbyterian Church The

General Assembly is the highest legislative and interpretive

body of the denomination, and the final point of decision in

all disputes. As such, its statements are considered worthy of

the respect and prayerful consideration of all the denomi-

nation’s members

Through its General Assembly, as its highest governing

body, the Presbyterian Church has often spoken about

religious expression in public places. In 1988 the General

Assembly adopted a comprehensive policy on religious

liberty entitled “God Alone Is Lord of the Conscience.” In

that policy the General Assembly said) “Religious speech

and assembly by private citizens and organizations, initiated

by them, is protected both by the Free Exercise of Religion

and Free Speech Clauses of the Constitution and cannot be

excluded from public places.” That same Assembly continu-

ed “If public schools permit genuinely extra-curricular

Student initiated group activities in noninstructional time,

religious expression should be permitted subject to the same

regulations and restrictions.”

The school board policy at issue in this case clearly falls

outside those parameters. Religious Expression is the only

use explicitly prohibited by that policy. Surely such a policy

does not pass Constitutional muster. The Stated Clerk urges

this Court to protect the rights guaranteed by the First

Amendment for all religious persons in New York State

lhe General Board of Church & Society of lhe United

Methodist Church

The General Board of Church and Society of The United

Methodist Church (the "General Board") is the public policy

and social action agency of The United Methodist Church

4a

The primary responsibility of the General Board is to seek the

implementation of the Social Principles and the Resolutions

of The United Methodist Church The United Methodist

Church asserts the rights of all religions and their adherents to

freedom from discrimination (Social Principles, Par

66.111.B) Consistent with its mission, the General Board

opposes any action of government that discriminates and

denies access to public buildings because of the religious

character of a program. Many United Methodist groups and

churches use public school facilities for services and

instruction after school hours’) The General Board believes

that any religious group should have the same access that

other civic organizations have to school facilities

The General Conference of Seventh-day Adventists

The North American Division of the General Conference of

Seventh-day Adventists administers the work of the Seventh-

day Adventist Church in the United States, Canada, and

Bermuda, and represents more than 4,700 congregations with

nearly 900,000 members. The Church strongly supports the

twin concepts of the free exercise and non-establishment of

religion and actively promotes those ideals through its bi-

monthly Liberty magazine

The Church's Working Policy points out “that religious

liberty is best achieved, guaranteed and preserved when

church and government respect each other's proper areas of

activity and concern” and that “in matters where secular and

religious interests overlap, government, in the best interests of

both church and government, must observe strict neutrality in

religious matters, neither promoting nor restricting individ-

uals or the Church in the legitimate exercise of their rights.”

The Church believes that public-school districts are not

neutral in religious matters when they permit all but religious

groups to use school facilities after hours. It believes that

such unequal treatment violates both Equal Protection and

First Amendment guarantees of the federal Constitution.

Sa

The National Council of Churches

The National Council of Churches, also known as The

National Council of the Churches of Christ in the USA, is a

community of 36 Protestant and Orthodox communions

having an aggregate membership in the United States of over

fifty million. Its positions on public issues are taken on the

basis of policies developed by its General Assembly,

composed of some 270 members who are selected by member

communions in numbers proportionate to their size. Groups

within the member communions of the National Council of

Churches have used public school facilities, after school

hours, for religious programming, and would be interested in

maintaining that access.

lhe Reorganized Church of Jesus Christ of Latter Day Saints

The Reorganized Church of Jesus Christ of Latter Day

Saints (“RLDS Church”) is a Christian Church with world

headquarters located in Independence, Missouri: The RLDS

Church follows doctrines based upon the teachings of Jesus

Christ, and its organization follows patterns of the New

Testament Church The RLDS has members and congre-

gations in every state of the Union and in over 37 countries.

The RLDS Church has local congregations which utilize

public facilities, and conduct or participate in activities which

utilize public facilities. The Church would like to preserve its

ability to use such facilities on an equal basis with other,

secular groups.