THE SUPREME COURT CASE THAT PITS FREE SPEECH AGAINST CHURCH-STATE SEPARATION

Next week the Supreme Court will hear oral argument in Good News Club v. Milford Central School, a case that presents a clash between two venerable First Amendment principles. On the one hand, government may not discriminate against speech on the basis of viewpoint, and a religious viewpoint is no less a viewpoint than any other. On the other hand, government has an obligation to avoid endorsing religion (or non-religion), an obligation that takes on special significance in the case of a public elementary school.

There is no easy answer in the Good News case. One principle or the other will have to yield. Nonetheless, the Justices can steer a middle course by interpreting the First Amendment to place the decision of which of the two principles to sacrifice in the hands of elected state and local officials. Whether they choose this course will depend upon whether they can bring themselves to see the case in terms of federalism and decentralization, rather than as just one more battle in the ongoing culture war.

Located in Otsego County, New York, the Milford Central School educates roughly 500 students from ages 5 through 18 in one school building. As mandated by a New York State law (N.Y. education law § 414), the school permits outside organizations such as the Boy Scouts, Girl Scouts, and 4-H Clubs to use its facilities when classes are not in session.

The Good News Club, an Evangelical Christian organization, applied to use a Milford classroom for meetings immediately following the end of classes. The district denied the request on the ground that the proposed use would be the "equivalent of religious worship," in violation of school policy.

Good News sued and a federal district court granted a preliminary injunction, directing the school to permit Good News to use school facilities. However, the court later vacated that injunction and granted summary judgment to the school, allowing it to deny Good News use of school facilities. That ruling, in favor of the school, was affirmed on appeal.

That might have been the end of things, but in a similar case, another federal appeals court for a different judicial Circuit had already ruled in favor of a Good News Club in Indiana, compelling an Indiana school to allow Good News access. In light of this "Circuit split," the U.S. Supreme Court decided to consider the issue these cases both raise, and thus granted review of the New York case.

The New York Good News case features some minor jousting over the precise nature of Good News meetings. Good News describes itself as "a private Christian youth organization that develops children's moral values by using Bible stories, games, scripture, and songs in a fun setting," noting further that it is not affiliated with any specific church and that meetings are open to children of all faiths.

The school, in contrast, characterizes these meetings as essentially Sunday school during the week. There is no dispute that Good News meetings feature the singing of religious hymns, prayer, Bible stories, and religious instruction. The question is whether the school may, or even must, exclude the organization.

The school argues that the First Amendment's prohibition on Establishment of Religion requires it to exclude Good News from its facilities. The school points to the landmark decisions in Everson v. Board of Education (issued in 1947) and Illinois ex rel. McCollum v. Board of Education (issued in 1948), which invoke Thomas Jefferson's metaphor of a "wall of separation" between church and state.

The McCollum case invalidated a program under which religious instruction substituted for secular subjects during the last period of the school day. The Milford Central School argues that this case is scarcely different. Although Good News meets just after regular classes have ended, the school contends that the close proximity in time will signal a message of official endorsement to impressionable elementary-age students.

Citing last year's decision in Santa Fe Independent School District v. Doe, which invalidated a student-led prayer at high school football games, the school argues that even nominally private religious speech can violate the Establishment Clause if the government plays a substantial role in facilitating that speech.

Good News counters that the football game prayer case is different in one crucial respect. There, the school authorities set up a forum specifically for the purpose of enabling student prayer. In Milford, by contrast, the school opened its facilities up to a wide range of organizations. Under these circumstances, Good News urges, hosting a religious organization along with other, secular, organizations, would not implicate the public school authorities in the religious activities.

Moreover, Good News points to a number of recent precedents in which the Supreme Court has said that if the government creates a forum for the expression of various viewpoints, the First Amendment's free speech clause forbids the exclusion of religious speech from that forum.

For example, in the 1995 decision in Rosenberger v. Rector and Visitors of the University of Virginia, the University of Virginia was required to fund a Christian student newspaper in light of the fact that it funded secular student newspapers.

Even more directly on point, in the 1993 decision in Lamb's Chapel v. Center Moriches Union Free School District, the Supreme Court considered the application of the same New York State law at issue in Good News. In Lamb's Chapel, a Long Island, New York school district had denied an evangelical church's request to show a six-part film series that discussed family issues and child rearing from a Christian perspective. Although the school district was not obligated to open its facilities to use by any outside groups, the Court said that because the district would permit groups addressing family and child rearing from a secular perspective, it could not exclude a group addressing the same subject from a religious one.

In the appellate level-decision in Good News, as to which the Supreme Court granted review, the Second Circuit Court of Appeals distinguished Rosenberger and Lamb's Chapel by contrasting "the discussion of secular subjects from a religious viewpoint" with "the discussion of religious material through religious instruction and prayer."

The former, the court suggested, cannot be excluded from schools, due to the First Amendment's ban on viewpoint discrimination, while the latter can be excluded from schools pursuant to the government's legitimate authority to restrict a forum it creates to particular uses. In other words, the Court of Appeals distinguished between viewpoint and subject matter. The Milford Central School now urges the Supreme Court to do the same.

The viewpoint/subject matter distinction has roots in an arcane area of free speech law known as the "limited," or "designated," public forum doctrine.

Suppose that a city government wishes to foster opera by making a city-owned theater available to private groups. The designated public forum doctrine would permit the city to restrict the theater to opera companies — as opposed to vaudeville troupes, rap singers, and wrestling exhibitions. However, the city could not forbid, say, operas critical of the government (as some interpretations of "Tosca" might be, for example).

The basic disagreement in Good News is about whether worship can be characterized as a distinct subject matter, in the same way that rap can in the previous example, and thus excluded from a forum limited to other subject matters. The school says worship can, indeed, be so characterized. Good News says it cannot.

Intriguingly, a group of 20 theologians has filed an amicus brief in support of Good News, arguing that for many persons of faith, there is no meaningful distinction between "moral instruction from a religious perspective" and "religious instruction." To draw such a distinction, these theologians say, is to assume the separability of religion and morality, but that assumption is itself a highly controversial viewpoint. These are, the amicus brief asserts, "deep theological waters."

Yet one does not need to have been ordained to see that the basic problem is not theological at all, but doctrinal. In distinguishing between viewpoint and subject matter, the Court's cases draw a necessary but somewhat unstable line. When the government says a theater can be used for opera but not rap it inevitably favors some viewpoints over others, even if that is not its intent. As Marshall McLuhan said, "the medium is the message."

Accordingly, for Good News to prevail, it must show that distinguishing viewpoint from subject matter is more difficult with respect to religious speech than with respect to other kinds of speech. Perhaps such a showing can be made, but it is has not been made in the briefs submitted to the Court.

The briefs of Good News and its amici go to great lengths to show that there are great difficulties inherent in drawing the line with respect to religion. That may be true, but it may also be irrelevant. They do not much address the more directly relevant, comparative question of whether drawing the line with respect to secular subjects (something the Court has always assumed is possible) is any easier.

Public school officials, and other government officials, face a dilemma. If they are too accommodating of religious groups' requests for public facilities and resources, they risk violating the Establishment Clause. Yet if they are insufficiently accommodating, they risk violating the free speech rights of religious groups.

One permissible approach would be for government officials to deny every organization and individual access to public facilities and resources, but such a "solution" would satisfy the Constitution at the cost of neglecting more immediate obligations to the community.

A better approach might be for the Supreme Court to loosen the constraints on government by creating some breathing room between its interpretations of the various provisions of the First Amendment. In a case like Good News, that would mean a partial victory for each side. The Court could say that the Establishment Clause did not obligate Milford Central School to exclude Good News, but neither did the Free Speech Clause forbid the exclusion: It's up to the school (and other schools across the country) to decide.

Thus, Good News would be excluded from Milford Central but similar organizations would be permitted access to school buildings in districts that strike a somewhat different balance between free speech and church-state separation.

To be sure, extreme cases of clear hostility to, or sponsorship of, religion must be governed by constitutional rules — and should not be relegated to a limbo between free exercise of religion, and establishment of it. But perfectly unclear cases like Good News could be left to state and local democratic processes. For a Court that cares about federalism — a system of government in which the states can take diverse approach to similar problems — that may be the best way to stay afloat in these deep waters.