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A Clash Between Two Cases Involving Equality and Religious Speech: How the U.S. Court of Appeals for the Fourth Circuit's Decisions Are Inconsistent

Thursday, Aug. 24, 2006

Two doctrines involving religious speech have proved to be on a collision course, in two recent decisions of the United States Court of Appeals for the Fourth Circuit. The question for the Fourth Circuit is what "equality" in the free exercise cases really means.

In April of 2005, the Fourth Circuit held, in Simpson v. Chesterfield County Board of Supervisors, that local government can intentionally and publicly discriminate against minority religious denominations. But this month, the Fourth Circuit held in Child Evangelism Fellowship v. Montgomery County Public Schools, that a public school's refusal to permit Christian evangelistic literature in its take-home flyer program was potentially viewpoint discrimination, and, therefore, unconstitutional.

In this column, I'll explain why the two decisions cannot be reconciled, and put them in the larger contexts of Supreme Court precedent and the Christian evangelical "equality" movement.

Speech in Public Schools: The CEF Decision

This month's case arose because the Child Evangelism Fellowship (CEF) sought to distribute its "Good News Club" flyers through the public schools. The flyers informed elementary school parents about the club's afterschool meetings at which, the flyers noted, "children recite Bible verses, sing songs, play games, learn Bible stories, and pray under the leadership of trained staff who primarily are volunteers." (In earlier Supreme Court decisions, the Court held that such programs could be held in public school buildings and that schools could not exclude programs just because they were religious, leaving open, however, the question whether schools must tacitly endorse the programs through distribution of their flyers.)

The school district recognized the flyers for what they were - evangelization. It felt that to distribute them through the school would send a message of endorsement. It believed that it was bound by the Establishment Clause not to endorse religion, or any particular religion, which was a rational conclusion in light of the Lee v. Weisman and Santa Fe School District decision. Thus, it told CEF that it would not distribute its flyers. CEF sued - arguing that the school had too much discretion to choose between various flyers, leaving open the possibility of viewpoint discretion.

The district court found that the discretion in the flyer program was not, in fact, unbridled, because, though the flyers were a forum for speech, the school district had limited the forum to "themes of traditional educational relevance." The district court agreed with the school district that this category did not include religious themes.

The Fourth Circuit rejected the district court's fact finding, in a relatively rare move. (Appellate courts typically treat district court fact findings with great deference.) As the Court characterized the program, the school district permitted itself "unbridled discretion" over which flyers would be distributed to students. Thus, the appellate court ruled in favor of CEF on the viewpoint discrimination theory.

The Fourth Circuit accordingly rejected the school district's argument that the Establishment Clause placed limits on its ability to further Christian evangelization, and, instead found, on free speech principles, that the potential for viewpoint discrimination was enough to invalidate the school's program. The reasoning sounded in principles of equality: If others could distribute their flyers through the public schools, why not CEF?

This argument has a surface plausibility, but in the end is unpersuasive. The Court left out a crucial element - there must be a balancing between free speech and establishment principles. By pursuing a free speech analysis without meaningful reference to disestablishment principles, the court handed CEF a religious benefit.

The balance here demanded an inquiry into whether the speakers had alternative avenues of communication if they could not co-opt the public school system. The answer, in the Internet era, is obviously, "Yes." Refusing to distribute CEF's flyers, after all, would hardly have gagged the group: What was at stake in this case was not suppression of this religious group, but rather its convenience.

Legislative Prayer: The Simpson Decision

Let's turn, now, to the Spring 2005 Fourth Circuit decision that's in conflict with the CEF decision, Simpson v. Chesterfield County Board of Supervisors. There, Cynthia Simpson, a devoted Wiccan, petitioned to participate in the Chesterfield County Board of Supervisors' first-come, first-served program for clergy to present nondenominational prayers at the Board's meetings.

The Board permitted a range of clerics from larger religious groups, including Catholic, Protestant, Muslim, and Jewish. Simpson offered to give the same type of nondenominational prayer delivered by the others -- one that invoked higher principles and looked to a higher power, without being denominationally specific. In light of the fact that Simpson would be giving the same kind of prayer, it's quite clear that the Board denied her petition as a result of intentional hostility and animus toward her religion, in particular.

Nevertheless, the Fourth Circuit held that the Board was entitled to do what it had done, because, according to the court, it was perfectly fine for a local government to prefer one denomination above another.

Readers might wonder if the holding against Simpson could be defended on the ground that the Board only permitted traditional religious viewpoints, on the theory that Wiccanism is a sort of modern fad. In truth, however, Wiccanism, which is related to paganism, precedes in history the organized religions permitted. The facts are all too obvious: Simpson was rejected because the Board simply disliked her religion.

The Backdrop: Key Supreme Court Precedents

To recap: The Fourth Circuit says it's constitutionally mandatory for a public school to give students proselytizing Christian flyers, yet it's constitutionally okay for a local government to refuse to hear nondenominational prayers from denominations its board members dislike. In other words, potential discrimination against a Christian evangelical group is verboten, but outright and public discrimination against a Wiccan, offering up nondenominational prayers, is perfectly fine. Common sense dictates that these two decisions cannot be sustained simultaneously - especially if equality is a principle of value.

How did the Fourth Circuit get to this point? To understand this, it's necessary to look at three key Supreme Court decisions.

First, the Fourth Circuit missed the Supreme Court's movement in the school speech cases. In 1969, in Tinker v. Des Moines School Dist., the Court held that a public school violated the Free Speech Clause of the First Amendment when it forbade students from wearing black armbands to protest the Vietnam War. The focus was on the rights of the dissenting students. The school was treated as a typical government actor -- though the Court explicitly recognized the schools' interest in keeping order and maintaining a constructive educational environment.

By 1988, however, in Hazelwood School Dist. v. Kuhlmeier, the Supreme Court had shifted its analysis significantly. It did not pursue the Tinker path of treating the public schools as typical government actors. Instead, it emphasized their function of acting "in loco parentis" - in the place of students' parents. Accordingly, the Court gave schools more latitude to regulate in the interest of preserving the educational environment (holding, on the case's own facts, that some censorship of a school newspaper by the administration was legitimate). And the Court cautioned courts to be more deferential to school administrators' decisions, even those affecting constitutional rights.

The problem with the Fourth Circuit's approach in the CEF case is that it hearkened back to Tinker - and utterly ignored the evolution of Court doctrine between Tinker and Hazelwood. As it acknowledged, its reasoning had not been applied to public schools in the past.

More specifically, by adopting an equality principle with respect to school-distributed flyers, the Fourth Circuit did not extend to the schools the latitude the Court, in Hazelwood, suggested was necessary. To the contrary, the Fourth Circuit created a doctrine where the school is at fault even if it is employing reasonable criteria to determine which flyers are related to secular education, and which are proselytization, and when it is broaching an Establishment Clause violation.

What about the Fourth Circuit's Simpson decision? It expressly relied on the Court's 1983 decision in Marsh v. Chambers. But again, it missed some important doctrinal moves that the Court has made since then.

In Marsh, the Supreme Court upheld the practice of legislative prayer - that is, of having a prayer of the legislative body's choice at the commencement of each legislative session -- on the ground that it had been in place since the nation's founding. But since Marsh, the Court has increasingly emphasized that government acts and policies must be neutral both as to viewpoint, and as to religious denomination - in cases decided under both the Speech and Free Exercise Clauses of the First Amendment.

A good example was the school-voucher decision, Simmons-Harris v. Zelman, wherein the Court held that the government can provide funds to be used for private religious education if the program includes a wide range and variety of schools. The neutrality of the panoply of choices was crucial to the decision. This increased emphasis on neutrality surely ought to prevent a Board of Supervisors from turning away Wiccans, especially those willing to follow the government's legislative prayer guidelines, while welcoming members of other denominations.

Why did the Fourth Circuit err in both these cases? I think the problem may be that its judges were wearing "doctrinal blinders." In a case involving speech in the public schools, it looked solely to the Court's "public forum" cases, without careful consideration of the public school speech cases, or the school Establishment Clause cases. In a case involving government prayer, the Court looked only to Marsh, the reasoning of which cannot be sustained in light of more recent precedents. What was missing in both cases was the big picture, and a good dose of common sense.

The Political Context: Using Equality Principles to Further Christian Ends

Turning to the political context, the CEF case was brought by the Christian Legal Society on the merits, with the National Legal Foundation, another Christian organization, submitting an amicus (friend of the court) brief. These two organizations are part of a larger movement dedicated to re-introducing Christianity into the public schools -- and, failing that, to siphoning public funds from the public schools to private religious schools and home-schoolers.

The political reality is that these organizations are using equality principles to further Christian ends; except in the courts, their devotion is not to equality, but rather to Christianity above all other faiths. (If one knows the political lay of the land, it should come as no surprise that the NLF supported the Board of Supervisors against the Wiccan preacher, in the Simpson case. So much for the principle of equal treatment of religious groups by government.) It's their right to take such a stance, of course - under the Free Exercise and Free Speech clauses. But the courts should not be misled into thinking that these litigants are truly in a fight for equality, as opposed to a fight to shore up Christian power and presence within the culture. The courts that fail to take into account this political reality are being unwittingly co-opted into this political movement.

Here, equality is little more than a litigation tactic. Christian groups such as these quite publicly have made clear that they want to roll back the Establishment Clause in order to empower Christianity. They've had little success with trying to force Creationism, or so-called "intelligent design," into public school science curricula. They have had only limited success in their push to permit government endorsement of the Ten Commandments in courthouses and elsewhere. As the CEF decision illustrates, their third gambit has been more successful: the resort to "equality."

Perhaps the Fourth Circuit is comfortable with the political universe within which it has been led by these two decisions, or perhaps doctrinal blinders have made it difficult for the court to see the internal inconsistency of these two decisions. Either way, it's made a serious error: The CEF and Simpson cases are not only contrary to the evolution of the Supreme Court's precedent and thinking over the years, they are also in conflict with each other. When the two decisions are taken together, the one internal consistency is that they both benefit Christians.

If equality is the principle at play, then Simpson was clearly wrongly decided: The Wiccan preacher ought to have had the same access as all the others had. If the Establishment Clause is of any continuing value, both cases need to be re-examined - for public schools should not be required to distribute proselytization, any more than other local government entities should be allowed to get away with public and intentional religious discrimination.

Marci A. Hamilton is the Paul R. Verkuil Chair in Public Law at Benjamin N. Cardozo School of Law, Yeshiva University. Professor Hamilton's most recent work is God vs. the Gavel: Religion and the Rule of Law (Cambridge University Press 2005). Her email address is

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