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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0383%3A21

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2001
- **Citation:** 533 U.S. 98

## Text

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0383%3A21. Public record. Not legal advice.