The following are excerpts from the majority, concurring, and dissenting opinions in the U.S. Supreme Court’s June 11 decision in Good News Club v. Milford Central School.
Majority Opinion by Justice Clarence Thomas:
This case presents two questions. The first question is whether Milford Central School violated the free-speech rights of the Good News Club when it excluded the club from meeting after hours at the school. The second question is whether any such violation is justified by Milford’s concern that permitting the club’s activities would violate the establishment clause. We conclude that Milford’s restriction violates the club’s free-speech rights and that no establishment- clause concern justifies that violation....
Milford has opened its limited public forum to activities that serve a variety of purposes, including events “pertaining to the welfare of the community.” Milford interprets its policy to permit discussions of subjects such as child rearing, and of “the development of character and morals from a religious perspective.” For example, this policy would allow someone to use Aesop’s fables to teach children moral values. Additionally, a group could sponsor a debate on whether there should be a constitutional amendment to permit prayer in public schools, and the Boy Scouts could meet to influence a boy’s character, development, and spiritual growth. In short, any group that promotes the moral and character development of children is eligible to use the school building.
Just as there is no question that teaching morals and character development to children is a permissible purpose under Milford’s policy, it is clear that the club teaches morals and character development to children. For example, no one disputes that the club instructs children to overcome feelings of jealousy, to treat others well regardless of how they treat the children, and to be obedient, even if it does so in a nonsecular way. Nonetheless, because Milford found the club’s activities to be religious in nature—"the equivalent of religious instruction itself"—it excluded the club from use of its facilities.
Applying Lamb’s Chapel [v. Center Moriches Union Free School District (1993)], we find it quite clear that Milford engaged in viewpoint discrimination when it excluded the club from the after-school forum. ...
We disagree that something that is “quintessentially religious” or “decidedly religious in nature” cannot also be characterized properly as the teaching of morals and character development from a particular viewpoint. What matters for purposes of the free-speech clause is that we can see no logical difference in kind between the invocation of Christianity by the club and the invocation of teamwork, loyalty, or patriotism by other associations to provide a foundation for their lessons. It is apparent that the unstated principle of the court of appeals’ reasoning is its conclusion that any time religious instruction and prayer are used to discuss morals and character, the discussion is simply not a “pure” discussion of those issues. According to the court of appeals, reliance on Christian principles taints moral and character instruction in a way that other foundations for thought or viewpoints do not. We, however, have never reached such a conclusion. Instead, we reaffirm our holdings in Lamb’s Chapel and Rosenberger [v. Rector and Visitors of University of Virginia (1995)] that speech discussing otherwise permissible subjects cannot be excluded from a limited public forum on the ground that the subject is discussed from a religious viewpoint. Thus, we conclude that Milford’s exclusion of the club from use of the school, pursuant to its community-use policy, constitutes impermissible viewpoint discrimination....
Milford argues that, even if its restriction constitutes viewpoint discrimination, its interest in not violating the establishment clause outweighs the club’s interest in gaining equal access to the school’s facilities. In other words, according to Milford, its restriction was required to avoid violating the establishment clause. We disagree. ...
According to Milford, children will perceive that the school is endorsing the club and will feel coercive pressure to participate, because the club’s activities take place on school grounds, even though they occur during nonschool hours. This argument is unpersuasive....
[E]ven if we were to inquire into the minds of schoolchildren in this case, we cannot say the danger that children would misperceive the endorsement of religion is any greater than the danger that they would perceive a hostility toward the religious viewpoint if the club were excluded from the public forum. This concern is particularly acute given the reality that Milford’s building is not used only for elementary school children. Students, from kindergarten through the 12th grade, all attend school in the same building. There may be as many, if not more, upperclassmen than elementary school children who occupy the school after hours. For that matter, members of the public writ large are permitted in the school after hours pursuant to the community-use policy. Any bystander could conceivably be aware of the school’s use policy and its exclusion of the Good News Club, and could suffer as much from viewpoint discrimination as elementary school children could suffer from perceived endorsement.
We cannot operate, as Milford would have us do, under the assumption that any risk that small children would perceive endorsement should counsel in favor of excluding the club’s religious activity. We decline to employ establishment-clause jurisprudence using a modified heckler’s veto, in which a group’s religious activity can be proscribed on the basis of what the youngest members of the audience might misperceive....
Concurring Opinions
Justice Stephen G. Breyer:
I agree with the court’s conclusion and join its opinion to the extent that they are consistent with the following three observations. First, the government’s “neutrality” in respect to religion is one, but only one, of the considerations relevant to deciding whether a public school’s policy violates the establishment clause. As this court previously has indicated, a child’s perception that the school has endorsed a particular religion or religion in general may also prove critically important. Today’s opinion does not purport to change that legal principle.
Second, the critical establishment-clause question here may well prove to be whether a child, participating in the Good News Club’s activities, could reasonably perceive the school’s permission for the club to use its facilities as an endorsement of religion. The time of day, the age of the children, the nature of the meetings, and other specific circumstances are relevant in helping to determine whether, in fact, the club so dominates the forum that, in the children’s minds, a formal policy of equal access is transformed into a demonstration of approval.
Third, the court cannot fully answer the establishment-clause question this case raises, given its procedural posture....
Justice Antonin Scalia:
...I join Part IV of the court’s opinion, regarding the establishment clause issue, with the understanding that its consideration of coercive pressure and perceptions of endorsement to the extent that the law makes such factors relevant, is consistent with the belief (which I hold) that in this case that extent is zero. As to coercive pressure: Physical coercion is not at issue here; and so- called “peer pressure,” if it can even [be] considered coercion, is, when it arises from private activities, one of the attendant consequences of a freedom of association that is constitutionally protected. What is at play here is not coercion, but the compulsion of ideas-and the private right to exert and receive that compulsion (or to have one’s children receive it) is protected by the free speech and free exercise clauses, not banned by the establishment clause. A priest has as much liberty to proselytize as a patriot....
Dissenting Opinions
Justice John Paul Stevens:
...Distinguishing speech from a religious viewpoint, on the one hand, from religious proselytizing, on the other, is comparable to distinguishing meetings to discuss political issues from meetings whose principal purpose is to recruit new members to join a political organization. If a school decides to authorize after-school discussions of current events in its classrooms, it may not exclude people from expressing their views simply because it dislikes their particular political opinions. But must it therefore allow organized political groups—for example, the Democratic Party, the Libertarian Party, or the Ku Klux Klan—to hold meetings, the principal purpose of which is not to discuss the current-events topic from their own unique point of view but rather to recruit others to join their respective groups? I think not. Such recruiting meetings may introduce divisiveness and tend to separate young children into cliques that undermine the school’s educational mission.
School officials may reasonably believe that evangelical meetings designed to convert children to a particular religious faith pose the same risk. And, just as a school may allow meetings to discuss current events from a political perspective without also allowing organized political recruitment, so too can a school allow discussion of topics such as moral development from a religious (or nonreligious) perspective without thereby opening its forum to religious proselytizing or worship....
Justice David H. Souter,
joined by Justice Ruth
Bader Ginsburg:
...It is beyond question that Good News intends to use the public school premises not for the mere discussion of a subject from a particular, Christian point of view, but for an evangelical service of worship calling children to commit themselves in an act of Christian conversion. The majority avoids this reality only by resorting to the bland and general characterization of Good News’ activity as “teaching of morals and character, from a religious standpoint.” If the majority’s statement ignores reality, as it surely does, then today’s holding may be understood only in equally generic terms. Otherwise, indeed, this case would stand for the remarkable proposition that any public school opened for civic meetings must be opened for use as a church, synagogue, or mosque....
The cohort addressed by Good News is not university students with relative maturity, or even high school pupils, but elementary school children as young as 6. The establishment-clause cases have consistently recognized the particular impressionability of schoolchildren, and the special protection required for those in the elementary grades in the school forum....
The timing and format of Good News’ gatherings ... may well affirmatively suggest the imprimatur of officialdom in the minds of the young children.... In fact, the temporal and physical continuity of Good News’ meetings with the regular school routine seems to be the whole point of using the school. When meetings were held in a community church, eight or 10 children attended; after the school became the site, the number went up threefold....
[T]here is a good case that Good News’ exercises blur the line between public classroom instruction and private religious indoctrination, leaving a reasonable elementary school pupil unable to appreciate that the former instruction is the business of the school while the latter evangelism is not....
