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

~ is Beprone oun, us

(y1] | FILE

tV 20 sen ww

I" at NOY 3-0 2000

No. 99-2036 |

. IN THE wen

Supreme Court of the Gnited States

Goob NEws CLUB, et al.,

Petitioners,

V.

MILFORD CENTRAL SCHOOL,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Second Circuit

BRIEF OF AMICI CURIAE

THE AMERICAN CENTER FOR LAW & JUSTICE,

FOCUS ON THE FAMILY, AND THE

ETHICS & RELIGIOUS LIBERTY COMMISSION OF

THE SOUTHERN BAPTIST CONVENTION

IN SUPPORT OF PETITIONERS

PAUL D, CLEMENT JAY ALAN SEKULOW

JEFFREY S. BUCHOLTZ Counsel of Record

KING & SPALDING COLBY M. MAY

1730 Pennsylvania Avenue, N.W. JAMES M. HENDERSON, SR.

Washington, DC 20006 WALTER M. WEBER

(202) 737-0500 AMERICAN CENTER FOR

LAW & JUSTICE

1000 Thomas Jefferson

Street, N.W., Suite 609

Washington, DC 20007

(202) 337-2273

November 30, 2000 Counsel for Amici Curiae

WILSON-EPES PRINTING CO., INC. — (202) 789-0096 -— WASHINGTON, D. C. 20001

TABLE OF CONTENTS

Page

TABLES GP AL TRGIERE 6 UID ccccvccccccsescosccscsenssenseesssusesces ill

INTEREST OF AMICI CURIAE ....... ee eeeeeeeeeeee l

SUMMARY OF ARGUMENT ...............ccsssccesssseeeeeseees 2

RITA EEITE cccwsesssnsenssnnmmmennmameenion 3

I. PROGRAMS THAT PERMIT PRIVATE

GROUPS TO USE PUBLIC FACILITIES ON

A NEUTRAL BASIS DO NOT RAISE

ESTABLISHMENT CLAUSE DIFFICUL-

A. This Court’s Precedents Establish that

Programs that Combine Neutrality and

Private Speech Avoid Establishment

CSD FUR a cesesscvessonsessnnesennmseemnenenininesia 4

B. Allowing the Good News Club to Use

School Facilities on a Neutral Basis Would

Not Pose any Establishment Clause

POON cisncennnsmmmnnmenieneeanninmeiaals 6

Il. ALLOWING THE GOOD NEWS CLUB TO

USE SCHOOL FACILITIES ON A

NEUTRAL BASIS RAISES NONE OF THE

CONCERNS IMPLICATED BY POLICIES

AUTHORIZING SCHOOL PRAYER OR

ON-CAMPUS RELEASE-TIME — PRO-

RIUEPUIITIEs coccssecsnncesssnnonestacnssonsossensessonenensansnnnnnenins 8

A. Milford Central’s Suggested Analogies

Ignore the Fundamental Difference

Between this Case and Those on Which It

SUNITA consocensssnennsesestissnecstninstainsdanmntniemcasialeels 9

B. Eliminating Discrimination Against the

Good News Club Does Not Amount to an

On-Campus Release-Time Program ........... 10

CONCLUSION

ii

TABLE OF CONTENTS—Continued

C. Eliminating Discrimination Against the

Good News Club Does Not Amount to

Authorizing School Prayer......:........0000000000

THE FREE EXERCISE, ESTABLISHMENT,

AND EQUAL PROTECTION CLAUSES

ALL PREVENT OVERT DISCRIMINATION

AGAINST RELIGION AND OBVIATE ANY

NEED FOR ARBITRARY AND UNWORK-

ABLE DISTINCTIONS BETWEEN RELIG-

ION AND RELIGIOUS SPEECH ON A

SECULAR TOPIC

A. The Difference Between Discrimination

Against’ Religion and Discrimination

Against Religious Viewpoints Is Elusive at

Best

FOTO HEHEHE TEETH EEE EEE EEE HEHEHE EEE EEE EEE HEHE EEE

B. The Establishment, Free Exercise, and

Equal Protection Clauses Prohibit Facial

Discrimination Against Religion

C. An Express Prohibition on the Use of

Facilities for Religious Purposes Is Not a

Valid Content-Based Restriction

Page

15

17

17

ili

TABLE OF AUTHORITIES

Cases: Page

American Sugar Ref. Co. v. Louisiana, 179 U.S.

BD (Gi ncenscnccccncnsssessscccssscnsnseusecssseenssesssnsensensene 24

Board of Educ. of Kiryas Joel Village Sch. Dist.

v. Grumet, 512 U.S. 687 (1994)... ccseeeeeeeeees passim

Board of Educ. y. Allen, 392 U.S. 236 (1968) ....... 4

Board of Educ. v. Mergens, 496 U.S. 226 (1990).. passim

Bronx Household of Faith v. Community Sch.

Dist. No. 10, 127 F.3d 207 (2d Cir. 1997)......... 27

Burlington N. R.R. Co. v. Ford, 504 U.S. 648

Fa ccnensecssssensssesanscssnenesnensenanseneasensnenensennneomase 24

Church of the Lukumi Babalu Aye, Inc. v. City of

Hialeah, 508 U.S. 520 (1993) ....cccccccseeseeeeeerees passim

Cornelius v. NAACP Legal Defense & Ed. Fund,

Bear. S73 U.S. TEB (IDES) nercccccscccccecccscscescossese 18, 27, 28

Corporation of the Presiding Bishop of the

Church of Jesus Christ of Latter-Day Saints v.

pw UE UR, ee 22

Denver Area Educ. Telecom. Consortium vy.

6m JS | 18

Edwards v. Aguillard, 482 U.S. 578 (1987) .......... 13

Employment Div. v. Smith, 494 U.S. 872 (1990) ... passim

Engel v. Vitale, 370 U.S. 421 (1962) .....cccccccecceeeees 9,15

Everson v. Board of Educ., 330 U.S. 1 (1947)....... 4,22

Fowler v. Rhode Island, 345 U.S. 67 (1953) ......... 20

Lamb's Chapel v. Center Moriches Union Free

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

Larson v. Valente, 456 U.S. 228 (1982) ...........0 24

Lee v. Weisman, 50S U.S. 577 (1992)... cccccceees 9, 10, 15

Lemon v. Kurtzman, 403 U.S. 602 (1971)... 5

Illinois ex rel. McCollum v. Board of Educ., 333

CF. BD CFT ccccncsncssscsssccesssnsssescncocssccscsesnessesss passim

McDaniel v. Paty, 435 U.S. 618 (1978)...........21, 22, 25

Morrison v. Olson, 487 U.S. 654 (1988) ............... 25

Niemotko v. Maryland, 340 U.S. 268 (1951)......... 24

iV

TABLE OF AUTHORITIES—Continued

Page

Oyler v. Boles, 368 U.S. 448 (1962) oo... 28

Ray v. Blair, 343 U.S. 214 (1952). cccccccccccccececeee. 28

Rosenberger vy. Rector & Visitors of Univ. of

Virginia, 515 U.S. 819 (1995) Passim

Santa Fe Indep. Sch. Dist. v. Doe, 120 §. Ct.

ee ctnneseieenerenretitaiailanataiah tia a passim

United States y. Armstrong, 517 U.S. 456

Walz v. Tax Comm'n of New York, 397 U.S. 664

ee A TN 23

Widmar v. Vincent, 454 U.S. 263 (1981)............... 19, 20

Zorach v. Clauson, 343 U.S. 306 (1952)............. 8, 11, 22

Constitutional Provisions and Statutes:

. ULS. Comst. amend. I o..........cccccccesecessssesesessssoscsesee. passim

U.S. Const. amend, XIV ..0........cccccccecsssessssssesesseeee. passim

EE FT | | en a I4

INTEREST OF AMICI CURIAE

The American Center for Law & Justice (“ACLJ”) is a

nonprofit, public interest law firm and _ educational

organization dedicated to protecting First Amendment

freedoms, human life, and the family. ACLJ attorneys have

argued and participated as amicus curiae in dozens of cases

before this Court and lower federal courts, and chief counsel

Jay Sekulow has presented oral argument before this Court

in numerous cases, including Lamb's Chapel v. Center

Moriches Union Free Sch. Dist., 508 U.S. 384 (1993), and

Board of Educ. v. Mergens, 496 U.S. 226 (1990). ACLJ has

a particularly strong interest in this case because ACLJ

represented the church that prevailed in Lamb's Chapel, and

this case involves a virtually identical policy of discrim-

ination against religion.

Focus on the Family is a California nonprofit religious

corporation committed to strengthening the family in the

United States and abroad. The president of Focus on the

Family, James C. Dobson, Ph.D., is a child psychologist who

has written extensively on child rearing and family relations.

Focus on the Family produced and distributed the film series

at issue in Lamb's Chapel.

The Ethics and Religious Liberty Commission of the

Southern Baptist Convention is the ethics, moral concerns,

public policy, and religious liberty agency of the Southern

Baptist Convention, the Nation’s largest Protestant

denomination with nearly sixteen million members in 40,000

congregations. The Commission addresses moral and public

policy concerns, such as the First Amendment issues raised

in this case. All parties consent to the filing of this brief.'

' No counsel representing a party authored this brief in whole or in

part, and no person or entity, other than amici and their counsel, made a

monetary contribution to the preparation or submission of this brief.

2

SUMMARY OF ARGUMENT

The Milford Central School (“Milford Central”) has

adopted a community use policy that expressly discriminates

against religion. Although Milford Central generally opens

up its facilities to a broad spectrum of “social, civic and

recreational meetings and entertainment events,” it expressly

prohibits any use of “school premises . . . for religious

purposes.” See Pet. App. at A2-A3 (quoting school policy).

Nothing in the Establishment Clause remotely justifies or

permits this facial discrimination against religion. This

Court repeatedly has rejected the argument that the

Establishment Clause requires the exclusion of religious

groups from school facilities made available to other groups.

Allowing the Good News Club access to meeting space on a

non-discriminatory basis would involve no government aid

to religion. Instead, such a neutral policy that permits

private religious speech on a non-discriminatory basis would

comport with the Establishment Clause’s command that the

government neither advance nor inhibit religion.

Milford Central attempts to defend its facial discrim-

ination against religion on the theory that allowing the Good

News Club on school premises would create the same

dangers as on-campus release-time programs and _ state-

sponsored school prayers. Milford Central's suggested

analogies reflect a fundamental misreading of this Court’s

precedents. While a school policy that gave the Good News

Club special access to school premises or that adopted the

religious speech of the Good News Club as the school’s own

might well violate the Establishment Clause, a neutral policy

of non-discrimination does not pose the same risks. This

Court long ago rejected the notion that the Establishment

Clause forbids all religious speech on school grounds.

Allowing the Good News Club access on a_non-

discriminatory basis raises none of the concerns that led the

3

Court to strike down on-campus release-time programs and

school-prayer policies.

Indeed, Milford Central's policy, far from drawing any

justification from the Establishment Clause, affirmatively ”

violates the non-discrimination principles reflected in the

Establishment, Free Exercise, and Equal Protection ‘Clauses.

These provisions all prohibit government action that

expressly discriminates against religion or actions motivated

by religion. Even in areas where the government enjoys

some discretion, such as in imposing topical restrictions on a

limited public forum, it may not use forbidden criteria, like

race and religion, as the express basis for unfavorable

treatment. Accordingly, Milford Central's effort to defend

its prohibition on meetings convened “for ‘religious

purposes” as something other than viewpoint-discrimination

is to no avail. Even if that restriction does not discriminate

against religious viewpoints in violation of the Free Speech

Clause, it clearly discriminates against religion and religious

motivation in violation of the Establishment, Free Exercise,

and Equal Protection Clauses.

ARGUMENT

This case is almost an exact clone of Lamb's C hapel, even

down to the text of the challenged policies. Accordingly,

Milford Central’s policy clearly violates the Free Speech

Clause. This brief, therefore, focuses on Milford Central S

claim that the Establishment Clause requires a different

result here than in Lamb's Chapel. As explained below, not

only does the Establishment Clause not justify Milford

Central's policy, the Establishment, Free Exercise, and Equal

Protection Clauses prohibit the policy's discrimination

against religion.

4

I. PROGRAMS THAT PERMIT PRIVATE

GROUPS TO USE PUBLIC FACILITIES ON A

NEUTRAL BASIS DO NOT RAISE ESTAB-

LISHMENT CLAUSE DIFFICULTIES

A. This Court’s Precedents Establish that Pro-

grams that Combine Neutrality and Private

Speech Avoid Establishment Clause Problems.

: This Court's religion cases uniformly have stressed the

importance of government neutrality toward religion. The

neutrality principle has played a role in almost every effort to

interpret the Establishment Clause. See, e.g., Everson y.

Board of Educ., 330 U.S. 1, 18 (1947); Board of Educ. v.

Allen, 392 U.S. 236, 242-43 (1968). |

; Indeed, in the specific context of access to school

facilities, this Court has emphasized that a policy of

neutrality in NO way necessitates or justifies the exclusion of

religious speakers or religious topics. A neutral policy that

puts religious speech on an equal footing with other speech

does not violate the Establishment Clause. See, e.g., Rosen-

berger v. Rector & Visitors of Univ. of Virginia, 515 US.

819 (1995); Lamb's Chapel, supra. Neutrality demands that

a public school that opens its facilities to secular groups and

speakers not only may, but must, offer those facilities to

religious groups and speakers on an equal basis. See, e.v.,

Lamb's Chapel, 508 U.S. at 395-96. By treating religious

and non-religious speech equally, the ge 2mment ensures

that “the message is one of neutrality rather than

endorsement.” Mergens, 496 U.S. at 248 (plurality).

‘The principle of neutrality takes on special importance

with respect to private speech in public forums. When the

government opens up a forum to private speech on

designated topics, it must remain scrupulously neutral.

“[S]chools may not discriminate against religious groups by

denying them equal access to facilities that the schools make

5

available to all.” Rosenberger, 515 U.S. at 846 (O'Connor,

J., concurring) (citing Lamb's Chapel). The government

may not forbid speech from a religious perspective without

- violating the Free Speech Clause of the First Amendment.

In addition to neutrality, this Court repeatedly has

emphasized the distinction between direct government

involvement in religious speech or activity and government

toleration of private religious expression. As Mergens rec-

ognized, “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.” 496 U.S. at

250 (plurality) (emphasis in original). The government

avoids Establishment Clause difficulties when private

groups—rather than the government—determine the content

and topic of their speech. See, e.g., Lamb's Chapel, 508 U.S.

at 395 (concluding that “permitting District property to be

used [by a religious group] would not have been an

establishment of religion under the three-part test articulated

in Lemon v. Kurtzman, 403 U.S. 602 (1971)”).

In particular, programs that combine neutrality and private

speech avoid any endorsement of religion. Facial neutrality

lessens any perception of government endorsement of

religion. What is more, the voluntary participation of outside

groups and students ensures that the resulting speech is truly

private speech, rather than government action. A school

district does not endorse private speech that it permits on a

non-discriminatory basis. See, e.g., id. at 395. “The prop-

osition that schools do not endorse everything they fail to

censor is not complicated.” Mergens, 496 U.S. at 250

(plurality). With the guarantees of neutrality and individual

choice and control over content, “there is no real likelihood

that the speech in question is being either endorsed or

coerced by the State.” Rosenberger, 515 U.S. at 841-42;

accord id. at 848 (O'Connor, J., concurring).

6

This Court emphasized both of these themes—neutrality

and the importance of individual control over participation

and content—in Rosenberger. First, the Court observed that

“a significant factor in upholding governmental programs in

the face of Establishment Clause attack is their neutrality

towards religion.” /d. at 839. In addition, the Court high-

lighted the critical “distinction between the University’s own

favored message and the private speech of students.” /d. at

$34. The Court then applied these principles to conclude

that a neutral policy of reimbursing the printing costs of

student magazines, whose content was entirely the product of

student decisions, did not violate the Establishment Clause.

Rosenberger, of course, involved the more difficult con-

text of financial aid to religious groups. When the govern-

ment simply opens up a forum to outside groups on a neutral

basis without providing any financial aid, Establishment

Clause concerns are minimized. See, e.g., 515 U.S. at 846-

47 (O'Connor, J., concurring) (acknowledging that the

monetary aid given to religious groups in Rosenberger made

it a more difficult case than Lamb's Chapel). A neutral

program in which private speakers control the content of

their speech and receive no direct government aid does not

present any risk of endorsement or establishment.

B. Allowing the Good News Club to Use School

Facilities on a Neutral Basis Would Not Pose

any Establishment Clause Problem.

By permitting the Good News Club to use its facilities on

a neutral basis, Milford Central would adopt a neutral

program permitting private control over private speech

without government aid or endorsement. The Establishment

Clause poses no obstacle to the adoption of this policy, and

clearly does not justify Milford Central’s current policy of

discrimination against religion, See infra.

Allowing the Good News Club to use the facilities would

promote, rather than violate, the key principle of neutrality.

J

Milford Central's current policy makes the school facilities

available for a variety of “social, civic and recreational

meetings and entertainment events,” but expressly provides

that “[s]chool premises shall not be used by any individual or

organization for religious purposes.” See Pet. App. at A3

(quoting school policy). This policy evidences hostility to

religion. By removing the express prohibition on meetings

conducted “for religious purposes,” Milford Central would

restore the neutrality that is the touchstone of Establishment

Clause analysis.

Likewise, it is clear from Milford Central’s policy that

participating organizations, not the school, exercise control

over content and topic. Moreover, to the extent students take

advantage of programs provided by outside groups, such as

the Girl Scouts, they do so as a result of the private choices

of students and parents. The resulting speech is clearly

private speech attributable to the Girl Scouts, rather than

government speech attributable to the school. “Under these

circumstances . . . , there would have been no realistic danger

that the community would think that the District’ was

endorsing religion or any particular creed. . . .” Lamb's

Chapel, 508 U.S. at 395.

Finally, it bears emphasis that allowing the Good News

Club to use school facilities would involve no government

funding of the Club. This is a case of speech without aid.

Allowing the Good News Club access to school facilities

would implicate none of the difficult questions raised by the

provision of monetary aid that this Court approved in

Rosenberger.

In short, the Establishment Clause provides no cover for

Milford Central's exclusion of the Good News Club. To the

contrary, Milford Central's facial discrimination against

meetings convened “for religious purposes” creates, rather

than avoids, Establishment Clause difficulties. As explained

below, Milford Central's facial discrimination against

8

religion and religious motivations runs afoul of not just the

Establishment Clause, but the Free Exercise and Equal

Protection Clauses as well. What is more, Milford Central's

decision to forbid meetings with “religious purposes”

necessitates government monitoring of meetings to ensure

the absence of religious motivation. This is precisely the

kind of entanglement that the Establishment Clause

prohibits.

This concern is far from hypothetical. Milford Central's

Superintendent refused the Good News Club’s request to

hold meetings on school premises because “he understood

the Good News Club’s proposed use of the facilities to be

‘the equivalent of religious worship . . . rather than the

expression of religious views or values on a secular subject

matter.” Pet. App. at A9 (quoting denial letter). The

Establishment Clause requires school districts to avoid such

inquiries into religious content and motivation. See, e¢.g.,

Rosenberger, 515 U.S. at 836-37, 844-45,

A policy of neutrality would avoid this entanglement

without violating the Establishment Clause. There would be

no government control over speech and no monetary aid.

Allowing the Good News Club to participate on a neutral

basis, far from violating the Constitution, “follows the best

of our traditions.” Zorach v. Clauson, 343 U.S. 306. 314

(1952).

Il. ALLOWING THE GOOD NEWS CLUB TO USE

SCHOOL FACILITIES ON A NEUTRAL

BASIS RAISES NONE OF THE CONCERNS

IMPLICATED BY POLICIES AUTHORIZ-

ING SCHOOL PRAYER OR ON-CAMPUS

RELEASE-TIME PROGRAMS

Milford Central attempts to defend its decision to exclude

the Good News Club on the theory that allowing the Club to

use school facilities would be tantamount to authorizing

——ee

9

official school prayers or on-campus release-time programs.

Opp. Cert. at 9-10. Milford Central reasons that this Court

would find the Club’s participation unconstitutional just as it

struck down the on-campus release-time program in //linois

ex rel. McCollum v. Board of Educ., 333 U.S. 203 (1948),

and the school-prayer policies in Engel v. Vitale, 370 U.S.

421 (1962), Lee v. Weisman, 505 U.S. 577 (1992), and Santa

Fe Indep. Sch. Dist. v. Doe, 120 §. Ct. 2266 (2000).

These suggested analogies ignore the nature of the

school’s actions and the emphasis this Court has placed on

neutrality and private speech. First, Milford Central's

argument ignores the reality that, far from authorizing a

special benefit for religious groups, Milford Central

discriminates against religion. Removing that discrim-

ination—and allowing religious groups to participate on an

equal basis—does not create the same dangers that troubled

the Court in McCollum and the school-prayer cases. More

broadly, Milford Central simply ignores the importance of

neutrality and the fundamental distinction between private

speech and government speech. A neutral program that

allows private speakers to participate on an equal basis does

not raise the concerns implicated when the government

oversees religious education or composes official prayers.

A. Milford Central’s Suggested Analogies Ignore

the Fundamental Difference Between this Case

and Those on Which It Relies.

Milford Central’s analogy between what the Good News

Club seeks and what the Court struck down in McCollum

and the school-prayer cases is fundamentally flawed. In

McCollum, Engel, Lee, and Santa Fe, the Court confronted

school policies that provided some special benefit for

religion. In McCollum, the school authorized certain

religions to provide religious education on campus during

school hours. In Engel, the State authorized the reading of

10

an official prayer. The school in Lee provided guidelines for

the commencement prayer, while the Court found that the

school sponsored the student prayers in Santa Fe. Here, by

contrast, the school has not authorized any special benefit for

religion. To the contrary, Milford Central has affirmatively

discriminated against religion.

The Good News Club seeks only to end that affirmative

discrimination, It does not ask for any special benefit or

favored status. The Good News Club simply seeks equal

treatment. As demonstrated below, a policy of equal—as

opposed to special—treatment neither endorses nor estab-

lishes religion.

B. Eliminating Discrimination Against the Good

News Club Does Not Amount to an On-

Campus Release-Time Program.

Although Milford Central allows other clubs to use its

facilities, it denies religious clubs access on equal terms.

Eliminating that discrimination does not raise any of the

concems that led the Court to strike down the on-campus

release-time program at issue in McCollum. The program in

McCollum provided special benefits to religion and the

participating religious groups. The Illinois schools excused

students during school hours only if they took part in

religious education provided by one of the participating

religions. See 333 U.S. at 209-10. Students had no option to

receive instruction from a non-religious outside group.

With the exception of the approved religions,’ no other

outside group received access to school facilities during

school hours. Students’ only choices were religious instruc-

~ While there was no suggestion of an express denominational

preterence in McCollum and any religion could apply to participate, the

local school superintendent would “determine whether or not it is

practical for said group to teach in said school system.” /d. at 208 n.3

(quotation omitted).

tion and normal school instruction, with the caveat that the

normal school instruction could not involve “courses or

activities of compelling interest or importance” that would

deter students from choosing religion. /d. at 223 (Frank-

furter, J., concurring) (describing release-time programs

generally). Here, by contrast, the Good News Club seeks no

special status for religious instruction. It seeks only to

remove a special disability imposed on religious speech and

religious speech alone.

In addition, the program at issue in McCollum involved a

union of church and school functions with no analog in this

case. First and foremost, religious instruction took place

during school hours with the State’s compulsory education

laws ensuring student attendance. See id. at 209-10. To

enforce those compulsory attendance laws, the religious

instructors took attendance and reperted absentees just like

teachers of any other subject. See id. at 209 & n.5.

Although the school did not pay the salary of the religious

instructors, the superintendent approved each and every

instructor. See id. at 208 & n.3 (noting that “[t}he

superintendent was the last word so far as the individual was

concerned”). More broadly, the religious instruction took

place “subject to the approval and supervision of the

Superintendent.” /d. at 226 (Frankfurter, J., concurring)

(quotation omitted). In light of this record, the Court had

little difficulty striking down the Illinois program and

distinguishing other release-time programs where religious

instruction was not “patently woven into the working scheme

of the school,” id. at 227 (Frankfurter, J., concurring). Cf.

Zorach, supra (approving New York’s — release-time

program).

Although Milford Central admits, as it must, that the Good

News Club does not seek to meet during school hours or to

use the power of the state to enforce attendance, Milford

Central attempts to minimize these key differences. Instead,

12

Milford Central suggests that the proximity of the meeting

time to the end of the school day somehow raises

constitutional concerns. Opp. Cert. at 9. However, McCol-

lum emphasized the unique problems raised by in-school

meetings during the school day, while this Court

subsequently has approved after-school meetings.

First, the fact that the program in McCollum took place

during the school day, when state law forces students to stay

in school, was central to both the efficacy of the program and

the Court’s decision to strike it down. The Court focused on

the fact that “[p]upils compelled by law to go to school for

secular education are released in part from their legal duty

upon the condition that they attend the religious classes.”

McCollum, 333 U.S. at 209-10. Moreover, as Justice Frank-

furter explained, proponents of release-time programs

believed that providing religious instruction during the

normal school day was critical to the program’s success.

After-school programs failed because “children continued to

be children; they wanted to play when school was out,

particularly when other children were free to do so. Church

leaders decided that if the week-day church school was to

succeed, a way had to be found to give the child his religious

education during what the child conceived to be his “business

hours,’” /d. at 222 (Frankfurter, J., concurring).

At the same time, this Court has never expressed any

concern with allowing religious groups to participate on a

truly equal basis outside of school hours. For example, in

Mergens, the Court confronted a program that allowed

student groups to meet “after school hours on school

premises.” 496 U.S. at 231 (plurality). The Court expressed

no concern with allowing a Bible club to meet after school

on equal terms with the other student clubs. The Court

specifically rejected the argument that the aiter-school

meetings were constitutionally problematic because “the

State’s compulsory attendance laws bring the students

13

together.” /d. at 249. Instead, the Court focused on the

statute’s requirement that meetings occur during “nonin-

structional time,” and concluded that this provision “avoids

the proble[m] of . . . ‘mandatory attendance requirements.’”

Id. at 251 (quoting Edwards v. Aguillard, 482 U.S. 578, 584

(1987)).

In the end, Milford Central's effort to rely on McCollum

fails because this Court long ago rejected any bright-line rule

against the use of school facilities by religious groups.

Lamb's Chapel and Mergens both make clear that a non-

discriminatory policy of access to school facilities does not

raise the same concerns as an on-campus release-time

program. Just last Term, this Court reaffirmed that “by no

means” does the Establishment Clause “impose a prohibition

on all religious activity in our public schools.” Santa Fe,

120 S. Ct. at 2281.

School facilities do not bear some indelible taint of state

endorsement that continues after normal school hours and

attaches to private speech as well as government speech. If

the school allows groups to participate on an equal basis and

does not exert control over the content of private speech, the

fact that religious speech occurs within the school’s walls

does not suffice to violate the Establishment Clause. Under

these circumstances, there is “no realistic danger that the

community would think that the District was endorsing

religion or any particular creed.” Lamb's Chapel, 508 U.S.

at 395; accord Mergens, 496 U.S. at 250 (plurality)

‘If Milford Central truly were concerned about the unique dangers of

meetings that take place immediately after the school day, it would have

limited its prohibition on religious meetings to that time period. Instead,

Milford Central imposed a blanket ban on all religious meetings at any

time, night or day. This fact betrays Milford Central's protestations

about meetings immediately after the school day as a litigating position,

rather than a legitimate concern.

14

(concluding that students “are likely to understand that a

school does not endorse or support student speech that it

merely permits on a nondiscriminatory basis”).

Finally, it bears emphasis that although both Lamb's

Chapel and Mergens suti,ce to distinguish McCollum, this

case more closely resenidies Lamb's Chapel. First, and most

obviously, the restrictions on religious expression are

virtually identical. This case, like Lamb's Chapel, arises out

of a New York school district’s adoption of a policy based

on § 414 of the New York State Education Law. Both of the

challenged school policies expressly discriminated against

the use of school facilities for religious purposes. Second,

like Lamb's Chapel, this case involves outside community

groups—like the Boy Scouts and Girl Scouts—seeking

access to school facilities, not school-sponsored groups as in

Mergens. Accordingly, the Equal Access Act and the statu-

tory analysis under the Act do not apply.

Equally important, the participation of outside community

groups, rather than school-sponsored student groups, further

reduces any risk of perceived endorsement. The “principal

contention” raised against the Equal Access Act in Mergens

was that “the student religious meetings are held under

schoo! aegis.” Mergens, 496 U.S. at 249. Although Mer-

gens ultimately rejected this objection, it addressed it at

length. Here, by contrast, as in Lamb's Chapel, there is no

school-sponsored club and, accordingly, far less risk of

endorsement. Outside community groups involve a reduced

risk of endorsement precisely because they are outside

groups coming from the community rather than from the

school itself. A meeting of the Boy Scouts or the Good

News Club does not become a school function just because

the meeting is held at school. The Court said as much in

Lamb's Chapel. A State does not establish religion simply

by allowing a religious group to meet on school premises on

a non-discriminatory basis.

15

C. Eliminating Discrimination Against the Good

News Club Does Not Amount to Authorizing

School Prayer.

Milford Central's suggested analogy between allowing the

Club to participate on an equal basis and authorizing official

school prayers is even more strained. Allowing religious

speech on a neutral basis does not raise the constitutional

concerns implicated by having the state compose or impose

official school prayers. This Court consistently has

emphasized “the critical 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.””

Rosenberger, 515 U.S. at 841 (quoting Mergens, 496 U.S. at

250); accord Santa Fe, 120 S. Ct. at 2275 (reaffirming the

importance of this distinction).

In all its school prayer cases, this Court has emphasized

how government control over content made the resulting

prayers impermissible religious speech by the government.

See, e.g., Santa Fe, 120 S. Ct. at 2275; Lee, 505 U.S. at 590

(concluding that the “degree of school involvement” made

clear that the “prayers bore the imprint of the State”); Engel,

370 U.S. at 425 (concluding that “it is no part of the business

of government to compose official prayers for any group of

the American people to recite as a part of a religious program

carried on by the government”). The Court made this point

clearly last Term in Santa Fe. There, the Court reaffirmed

the critical distinction between private and government

speech, and analyzed the record at length to determine

whether the speech at issue was properly attributed to the

government. See 120 S. Ct. at 2275-79. The clear implica-

tion of the Court's analysis is that if the Court had construed

the speech as truly private speech, it would have upheld the

program. See, e.g., id. at 2275 (reaffirming that “an

16

individual's contribution to a government-created forum was

not government speech”).

Santa Fe recognizes that when the government exercises

substantial control over topic and content and thereby favors

prayer, the fact that a private speaker selects the exact words

will not necessarily save the program.” Here, however, the

school would not control the private speakers’ content

merely by giving the Good News Club equal access to a

government forum.

Indeed, the government would relinquish, rather than

exercise, content censorship by allowing the Club to use

school facilities on a non-discriminatory basis. Currently,

the government affirmatively prevents groups from engaging

in religious speech and from meeting for religious purposes.

This policy necessitates continuing government monitoring

to ensure that meetings are not convened for illicit purposes

and discussions do not stray into forbidden territory. By

permitting religious speech on a non-discriminatory basis,

Milford Central would relinquish its control over topic,

which would obviate this problematic monitoring of content

and viewpoint. Doing so would not raise any constitutional

problems. As this Court explained in Rosenberger, Lamb's

Chapel, and Mergens, programs that permit private speech

on a neutral basis do not raise Establishment Clause

concerns.

* Of course, the Court also found troubling other aspects of the

school’s program—aspects with no analog in this case, such as the

school’s historical practice of maintaining a student chaplain and the

unusual majoritarian election system. All of these factors led the Court

to conclude that “prayer is, in actuality, encouraged by the school.” /d. at

2278. The facts of this case, especially the school’s discrimination

against the Good News Club, stand in stark contrast.

17

lll. THE FREE EXERCISE, ESTABLISHMENT,

AND EQUAL PROTECTION CLAUSES

ALL PREVENT OVERT DISCRIMINATION

AGAINST RELIGION AND OBVIATE ANY

NEED FOR ARBITRARY AND UNWORKABLE

DISTINCTIONS BETWEEN RELIGION AND

RELIGIOUS SPEECH ON A SECULAR TOPIC

As explained above, nothing in this Court’s Establishment

Clause jurisprudence prevents Milford Central from allowing

the Good News Club to use school facilities on a non-

discriminatory basis. Indeed, far from requiring facial dis-

crimination against meetings convened “for religious

purposes,” the Establishment, Free Exercise, and Equal

Protection Clauses all affirmatively prevent it. Accordingly,

Milford Central’s effort to justify discrimination against

religion as a valid content restriction on a limited public

forum cannot succeed. There is no need for this Court to

struggle to draw arbitrary distinctions between discrim-

ination against religion as opposed to discrimination against

religious viewpoints. The former violates the Establishment,

Free Exercise, and Equal Protection Clauses, just as surely as

the latter violates the Free Speech Clause.

A. The Difference Between Discrimination

Against Religion and Discrimination Against

Religious Viewpoints Is Elusive at Best.

In defending against the Club’s free speech challenge,

both Milford Central and the court below characterize

Milford Central’s discrimination against religion as a valid

content restriction on speech in a limited public forum.

While acknowledging—as it must in light of Lamb's Chapel

and Rosenberger—that the Free Speech Clause forbids

discrimination against religious viewpoints, Milford Central

insists that a prohibition on religion is a valid content or

topic limitation. Likewise, the court below emphasized that

18

no other group engages in “the type of religious instruction

and prayer provided by the Club. Accordingly, the Milford

School's decision to exclude the Good News Club from its

facilities was based on content, not viewpoint.” Pet. App. at

Al8.

This Court repeatedly has stressed that the Free Speech

Clause forbids discrimination against religious viewpoints

and religious perspectives, even when the speech occurs in a

limited public forum. See, e.g., Lamb's Chapel, supra;

Rosenberger, supra. In Lamb's Chapel, the Court found that

the school had engaged in impermissible viewpoint

discrimination when it denied the showing of a film on

school property “solely because the series dealt with the

subject from a religious standpoint.” 508 U.S. at 394. The

Court elaborated in Rosenberger that “discriminating against

religious speech [is] discriminating on the basis of view-

point,” and that more generally, “[t]he government must

abstain from regulating speech when the specific motivating

ideology or the opinion or perspective of the speaker is the

rationale for the restriction.” 515 U.S. at 832, 829.

In both Lamb's Chapel and Rosenberger, the government

attempted to defend its restrictions on the use of its facilities

by religious groups as valid content-based restrictions on the

subject matter of religion. The government in both cases

relied on precedents suggesting that schools can impose

reasonable restrictions on a limited public forum that exclude

the discussion of designated topics. See, e.g., Cornelius vy.

NAACP Legal Defense & Ed. Fund, Inc., 473 U.S. 788, 806

(1985).° In both cases, this Court rejected that argument and

* Of course, the government does not enjoy plenary authority to

impose restrictions on a limited public forum. Such a restriction “may be

permissible if it preserves the purposes of that limited forum,”

Rosenberger, 515 U.S. at 830, and must be “‘reasonable in light of the

purpose served by the forum,’ id. at 829 (quoting Cornelius, 473 U.S. at

806) (emphasis added). See also Denver Area Educ. Telecom.

19

concluded that efforts to exclude religious groups constituted

impermissible viewpoint discrimination. As explained in

more detail in Petitioners’ brief, Milford Central’s exclusion

of the Good News Club likewise constitutes impermissible

viewpoint discrimination by limiting speech based on its

“specific motivating ideology,” Rosenberger, 515 U.S. at

- 829. However, as explained below, the Court need not

definitely resolve whether Milford Central has discriminated

on the basis of content or viewpoint to resolve this case.

The task of distinguishing between restrictions on religion

as a subject and restrictions on speech from a religious

perspective is difficult, if not ultimately impossible. In

Rosenberger, the Court “acknowledged” that “the distinction

is not a precise one.” 515 U.S. at 831. “It is, in a sense,

something of an understatement to speak of religious thought

and discussion as just a viewpoint, as distinct from a

comprehensive body of thought.” /d. The dissenting judge

below made an even stronger point in the specific context of

moral instruction: “when the subject matter is morals and

character, it is quixotic to attempt a distinction between

religious viewpoints and religious subject matters.” Pet.

App. at A22 (Jacobs, J., dissenting). Indeed, having the

constitutionality of school policies turn on murky distinc-

tions between religion as a viewpoint and religion as a topic

forces the courts to make inquiries into religion, which they

generally prefer to avoid.

The Court made a similar point in Widmar v. Vincent, 454

U.S. 263 (1981). There, the Court rejected the dissent’s

proposed distinction between religious speech and religious

worship as lacking “intelligible content.” /d. at 269 n.6.

Equally important, the Court observed that “even if the

Consortium v. FCC, 518 U.S. 727, 750 (1996) (plurality) (reserving the

question whether strict scrutiny applies to a content restriction defining

the boundary of a limited public forum).

20

distinction drew an arguably principled line, it is highly

doubtful that it would lie within the judicial competence to

administer.” /d.; see also Rosenberger, 515 U.S. at 835-36;

Fowler v. Rhode Island, 345 U.S. 67, 70 (1953) (“Nor is it in

the competence of courts under our constitutional scheme to

approve, disapprove, classify, regulate, or in any manner

control sermons delivered at religious meetings.”). “Merely

to draw the distinction would require the [school]—and

ultimately the courts—to inquire into the significance of

words and practices to different religious faiths, and in

varying circumstances by the same faith.” Widmar, 454 U.S.

at 269 n.6. This Court long has wisely abjured such

inquiries. Enforcing the distinction between religious speech

and religious worship “would tend inevitably to entangle the

State with religion in a manner forbidden by our cases.” /d.

Despite these admonitions, the court below placed

dispositive significance on a supposed distinction between

religious speech and the practice of religion, and confidently

asserted its ability to police that line. The court reiterated its

belief that the school could prohibit prayer or religious

instruction, as long as it did not discriminate against

religious viewpoints in the discussion of a secular topic. The

court then confidently proclaimed that “it is not difficult for

school authorities to make the distinction between the

discussion of secular subjects from a religious viewpoint and

the discussion of religious material through religious

instruction and prayer.” Pet. App. at A16 (citation omitted).

Finally, the court “determined that the activities of the Club

fall clearly on the side of religious instruction and prayer,”

and that “the Good News Club goes far beyond merely

Stating its viewpoint.” /d. at A1l6-A17.

This analysis rests on twin fallacies. First, it ignores

Widmar and erroneously asserts a competence to distinguish

religious instruction and prayer from religious speech.

Second, the court’s reasoning relies on the equally flawed

21

premise that a statute that expressly discriminates against

religious instruction and prayer constitutes a permissible

content-based restriction on a public forum. The Establish-

ment, Free Exercise, and Equal Protection Clauses clearly

forbid such facial discrimination against religion.

B. The Establishment, Free Exercise, and Equal

Protection Clauses Prohibit Facial Discrim-

ination Against Religion.

This Court has long recognized that a core protection of

the Establishment, Free Exercise, and Equal Protection

Clauses is the prohibition of discrimination against religion

or between sects. Although the Court at various times has

relied on one constitutional provision rather than another, the

Court consistently has treated these Clauses as embodying a

non-discrimination principle. Most of the Court’s cases have

addressed the more difficult situation where a state policy is

neutral on its face but has a disproportionate impact on

religion generally or on a particular religious group. This

case involves the straightforward case of express facial

discrimination against religion.

The Court relied on this non-discrimination principle in

striking down a statute that expressly prohibited ministers or

priests from serving in the state legislature. See McDaniel v.

Paty, 435 U.S. 618 (1978). Although McDaniel produced no

opinion for the Court, the Court unanimously rejected the

express disqualification under various legal theories. Chief

Justice Burger and Justice Stewart decided the case under the

Free Exercise Clause, while Justice White applied the Equal

Protection Clause. Justice Brennan located the constitutional

prohibition on such express discrimination in the Estab-

lishment and Free Exercise Clauses. He found the provision

unconstitutional because “it establishes a religious classifi-

cation—involvement in protected religious activity—

governing . . . eligibility.” /d. at 632 (Brennan, J., con-

curring).

22

More broadly, Justice Brennan concluded that with the

exception of express accommodations of religion, see, ¢.g.,

Zorach, supra, Corporation of the Presiding Bishop of the

Church of Jesus Christ of Latter-Day Saints v. Amos, 483

U.S. 327, 338-39 (1987), the government may not make

express classifications on the basis of religion. “Beyond

these limited situations in which government may take

cognizance of religion for purposes of accommodating our

traditions of religious liberty, government may not use

religion as a basis for the imposition of duties, penalties,

privileges or benefits.” 435 U.S. at 639 (Brennan, J.,

concurring). Justice Brennan’s analysis reflects a broader

principle that the Court has long recognized in its

Establishment Clause jurisprudence: “State power is no

more to be used so as to handicap religions, than it is to favor

them.” Everson v. Bd. of Educ., 330 U.S. 1, 18 (1947). As

Justice Kennedy explained more recently, “the Establishment

Clause forbids the government to use religion as a line-

drawing criterion.” Board of Educ. of Kiryas Joel Village

Sch. Dist. v. Grumet, 512 U.S. 687, 728 (1994) (Kennedy, J.,

concurring); see also id. at 699-704 & n.6 (plurality) (finding

statute unconstitutional because it reflected “legislative

favoritism along religious lines” and “employed a religious

criterion for delegating political power”); id. at 716

(O’Connor, J., concurring) (reaching the same result in part

because “it seems proper to treat [the district] as a

legislatively drawn religious classification”).

The Court recognized a_ similar non-discrimination

principle reflected in the Free Exercise Clause in Employ-

ment Div. v. Smith, 494 U.S. 872 (1990), and Church of the

Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520

(1993). Smith observed that the Free Exercise Clause makes

clear that the government may not “impose special

disabilities on the basis of religious views or religious

status.” 494 U.S. at 877. The Court concluded that “jiJt

23

would doubtless be unconstitutional” for a statute to ban

“acts or abstentions only when they are engaged in for

religious reasons, or only because of the religious belief that

they display.” /d. Indeed, Smith noted that statutes that

expressly discriminate on the basis of religion raise concerns

similar to race-based classifications. “Just as we subject to

the most exacting scrutiny laws that make classifications

based on race or on the content of speech, so too we strictly

scrutinize governmental classifications based on religion.”

Id. at 886 n.3 (citations omitted).

In Lukumi, the Court went further and recognized that the

Free Exercise Clause prohibits discrimination against

religion even where the discrimination is not clear on the

face of the statute. The Court reiterated that “the protections

of the Free Exercise Clause pertain if the law at issue

discriminates against some or all religious beliefs or

regulates or prohibits conduct because it is undertaken for

religious reasons.” 508 U.S. at 532 (emphasis added).

Lukumi_ reaffirmed that “the minimum requirement of

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

533. The Court went on to hold that “[o]fficial action that

targets religious conduct for distinctive treatment cannot be

shielded by mere compliance with the requirement of facial

neutrality.” /d. at 534. Applying that test, the Court struck

down a statute forbidding animal sacrifices despite the

absence of any language expressly addressing the religious

nature of the practice. See id. at 535-40.

Lukumi recognized that the Equal Protection Clause

provides similar protections against discrimination on the

basis of religion. The Court drew on its equal protection

jurisprudence for support and noted that, in analyzing a

statute, the determination concerning “*[nJeutrality in its

application requires an equal protection mode of analysis.’”

Id. at 540 (quoting Walz v. Tax Comm'n of New York, 397

U.S. 664, 696 (1970) (Harlan, J., concurring)). The Court

24

repeatedly has grouped religion with race as a forbidden

basis for government action under the Equal Protection

Clause. See, e.g., United States v. Armstrong, 517 U.S. 456,

464 (1996); Burlington N. R.R. Co. v. Ford, 504 U.S. 648,

651 (1992) (applying rational basis review because the

government did not “classify along suspect lines like race or

religion”); American Sugar Ref. Co. v. Louisiana, 179 U.S.

89, 92 (1900); see also Niemotko v. Maryland, 340 U.S. 268,

272 (1951) (upholding “[t}he right to equal protection of the

laws, in the exercise of those freedoms of speech and

religion protected by the First and Fourteenth Amend-

ments”).

Likewise, the Court employed an equal protection mode of

analysis in striking down limitations on charitable

solicitations in Larson v. Valente, 456 U.S. 228 (1982). See

id. at 246 (concluding that “we treat the law as suspect and

' we apply strict’ scrutiny in adjudging its

constitutionality” ); accord Smith, 494 U.S. at 886 n.3.° As

Justice Kennedy summarized in Kiryas Joel, “the

Establishment Clause mirrors the Equal Protection Clause.

Just as the government may not segregate people on account

* Although Larson viewed the statute as involving a denominational

preference because its burdens fell disproportionately on less well-

established churches, subsequent cases have cited it for the proposition

that the Constitution forbids discrimination between religious sects and

between religion and non-religion. See, e.g., Kiryas Joel, 512 U.S. at

705; see also id. at 703 (noting “that government should not prefer one

religion to another, or religion to irreligion”). Of course, if (contrary to

fact) Milford Central's policy imposed religion-neutral burdens, it might

involve the same type of denominational preference at issue in Larson

because the burdens might well have greater impact on less well-

established churches that do not have their own facilities or cannot afford

to bus children to other locations. However, the statute's facial

discrimination against all religion obviates any difficult inquiry into

whether it creates a denominational preference through _ its

disproportionate impact.

25

of their race, so too it may not segregate on the basis of

religion.” 512 U.S. at 728.

In short, “the Free Exercise Clause, the Establishment

Clause, the Religious Test Clause, Art. VI, cl. 3, and the

Equal Protection Clause as applied to religion—all speak

with one voice on this point: Absent the most unusual

circumstances, one’s religion ought not affect one’s legal

rights or duties or benefits.” /d. at 715 (O’Connor, J.,

concurring). Unlike the more difficult question posed by

facially-neutral statutes, this case involves the relatively rare

(and relatively easy) case of a law that facially discriminates

against religion. To borrow a phrase, “this wolf comes as a

wolf.” Morrison v. Olson, 487 U.S. 654, 699.(1988) (Scalia,

J., dissenting).

Notwithstanding Milford Central’s decision to open the

school for a variety of “social, civic and _ recreational

meetings and entertainment events,” its policy expressly

states that “[s]chool premises shall not be used by any

individual or organization for religious purposes.” Pet. App.

at A3 (quoting school policy). As the court below accurately

summarized, “[t]he Policy expressly forecloses use for

religious purposes.” /d.

This express discrimination against religion cannot be

squared with the Establishment, Free Exercise, and Equal

Protection Clauses. The Policy discriminates against reli-

gion on its face. By expressly denying access for religious

instruction and worship, Milford Central imposes an

unlawful “religious classification,” McDaniel, 435 U.S. at

632 (Brennan, J., concurring), and engages in impermissible

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

treatment.” Lukumi, 508 U.S. at 534.

Indeed, this policy goes beyond discrimination against

religion to discriminate on the basis of religious motivation,

By the policy's plain terms, an otherwise permissible social,

26

civic, or recreational meeting is forbidden if it is convened

“for religious purposes.” Under the policy, “it is only

conduct motivated by religious conviction that bears the

weight of the governmental restrictions.” /d. at 547. The

local cooking club can meet and break bread as long as those

actions are devoid of religious motivation. This discrim-

ination is flatly unconstitutional. The government cannot

constitutionally prohibit meetings “only when they are

engaged in for religious reasons, or only because of the

religious belief that they display.” Smith, 494 U.S. at 877.

This express discrimination violates the Constitution's

commitment to religious tolerance.

C. An Express Prohibition on the Use of Facilities

for Religious Purposes Is Not a Valid Content-

Based Restriction.

The centerpiece of Milford Central's litigation strategy has

been to characterize its policy as a content-based restriction

that prohibits religious instruction or any discussion “for

religious purposes,” as opposed to a prohibition against

addressing secular topics from a religious viewpoint.

Indeed, before the litigation commenced, “Superintendent

McGruder and counsel determined that ‘the kinds of

activities proposed to be engaged in by the Good News Club

[aJre not a discussion of secular subjects such as child

rearing, development of character and development of

morals from a religious perspective, but were in fact the

equivalent of religious instruction itself.” Pet. App. at AlO

(quoting Milford Central’s initial determination). The court

below drew the same distinction in approving Milford

Central’s exclusion of the Good News Club. See id. at Al6-

Al8.

The position of Milford Central and the court below

proceeds from the fundamentally mistaken notion that the

government can define the boundaries of a limited public

forum along expressly religious lines. Of course, Milford

27

Central goes beyond merely prohibiting speech on a reli-

gious topic to take the clearly forbidden step of prohibiting

speech “because it is undertaken for religious reasons.”

Lukumi, 508 U.S. at 532. But even putting that objection to

one side, the Establishment, Free Exercise, and Equal

Protection Clauses all forbid the government from using

religion as a basis for determining whether a private

speaker's message is permitted or verboten. Accordingly,

Milford Central’s effort to avoid the viewpoint discrim-

ination label this Court applied in Lamb’s Chapel and

Rosenberger serves only to indict the school for violating the

non-discrimination principle of the Establishment, Free

Exercise, and Equal Protection Clauses.

Milford Central and the court below seem to think that

Milford Central’s ability to define the boundaries of its

limited public forum somehow excuses it from compliance

with the Establishment, Free Exercise, and Equal Protection

Clauses. For example, in an earlier case, the court below

concluded that the Constitution’s prohibition on facial

discrimination against religion only “pertain[s] to traditional

public forums, or to a limited forum where the ‘viewpoint

neutral’ rule has been violated.” Bronx Household of Faith

v. Community Sch. Dist. No. 10, 127 F.3d 207, 216 (2d Cir.

1997). That is simply not so.

This Court’s public forum cases do not trump the

commands of the Establishment, Free Exercise, and Equal

Protection Clauses. To be sure, the government generally

may make topical distinctions in drawing the boundaries of a

limited public forum provided they are reasonably related to

the purposes of the forum. See, e.g., Rosenberger, 515 U.S.

at 829-30; Cornelius, 473 U.S. at 806. But that authority

does not extend to drawing those boundaries on the basis of

forbidden classifications, like race or religion. See, é.g.,

Kiryas Joel, 512 U.S. at 728 (Kennedy, J., concurring)

(“[T]he Establishment Clause forbids the government to use

28

religion as a line-drawing criterion.”). There are few func-

tions where the government enjoys as much discretion as in

deciding whom to prosecute. Nonetheless, this Court had

little difficulty concluding that the government's exercise of

prosecutorial discretion “may not be based on ‘an

unjustifiable standard such as race, religion, or other

arbitrary classification."” Armstrong, 517 U.S. at 464

(quoting Oyler v. Boles, 368 U.S. 448, 456 (1962)).

The government also enjoys substantial latitude in

drawing political districts, but this Court forbids racial and

religious gerrymandering. See, e.g., Kiryas Joel, supra.

There is simply no justification for using race or religion to

set the boundaries of a limited public forum, a context in

which the government enjoys substantially less discretion.’

Indeed, the government cannot draw racial or religious lines

even in a non-public forum. For example, it cannot crimi-

nalize trespass on jailhouse grounds “for religious purposes,”

or obstruction of military bases by Asian-Americans. If the

government must respect the non-discrimination principle in

the non-public forum context (and, more generally, in

enacting all criminal statutes, see Smith, supra), a restriction

on speech in a limited public forum must respect this same

principle, a fortiori.

This is not to say that Milford Central is powerless to

place any restrictions on its forum. Milford Central clearly

could close its schools to all outside groups. Likewise, it

might impose content-based restrictions on permissible

” It bears emphasis that this Court's precedents require the boundaries

of a limited public forum to be not only viewpoint-neutral, but reasonable

as well. See, e.g., Lamb's Chapel, 508 U.S. at 392-93; Cornelius, 473

U.S. at 806. A limited public forum drawn along racial or religious lines

is unreasonable per se. A religious classification, no less than a racial

one, “is not reasonably related to any legitimate legislative objective.”

Ray v. Blair, 343 U.S. 214, 226.14 (1952).

29

speech, as long as it does not use forbidden classifications—

such as race and religion—in drawing the boundaries. See,

e.g., Armstrong, 517 U.S. at 464; Kiryas Joel, 512 U.S. at

728 (Kennedy, J., concurring) (“The danger of stigma and

stirred animosities is no less acute for religious line-drawing

than for racial.”). A municipality can declare an area of a

school or park off-limits for groups of greater than 20 people

and all sporting events. The neutral prohibition on gather-

ings in excess of 20 people may well have the effect of

limiting the park’s use for religious exercises without raising

constitutional difficulties. However, if the municipality

expressly adds religious services to the list of forbidden uses,

it crosses a constitutional line. The Constitution simply

forbids the government from using religion as a criterion for

determining who will have access to a limited public forum.

The Constitution leaves Milford Central with substantial

latitude in fixing the boundaries of its limited public forum.

If Milford Central has legitimate reasons for limiting groups

that raise particular problems, it should have no difficulty

fashioning those restrictions in religion-neutral terms. But

that is a discipline the Constitution imposes on the school.

See, e.g., Lukumi, 508 U.S. at 546. Milford Central cannot

take a short cut by expressly discriminating against religion

or religious groups. The Constitution protects against the

“inequality [that] results when a legislature decides that the

governmental interests it seeks to advance are worthy of

being pursued only against conduct with a religious

motivation.” /d. at 542-43. If there is some other charac-

teristic of the Club that concerns school officials, they

remain free to target that concern directly. Facial discrim-

ination against religion is not an option.

30

CONCLUSION

For the foregoing reasons, and those expressed in

Petitioners’ Brief, this Court should reverse the judgment

below.

Respectfully submitted,

PAUL D. CLEMENT JAY ALAN SEKULOW

JEFFREY S. BUCHOLTZ Counsel of Record

KING & SPALDING COLBY M. MAY

1730 Pennsylvania Avenue, N.W. JAMES M. HENDERSON, SR.

Washington, DC 20006 WALTER M. WEBER

(202) 737-0500 AMERICAN CENTER FOR

LAW & JUSTICE

1000 Thomas Jefferson

Street, N.W., Suite 609

Washington, DC 20007

(202) 337-2273

November 30, 2000 Counsel for Amici Curiae