Washington, D.C.
Discussants:
Thomas Marcelle, Attorney for the Petitioners, Good News Club
Elliot Mincberg, Vice President, People for the American Way Foundation
Steven Sheinberg, Assistant Director, Legal Affairs, Anti-Defamation League
K. Hollyn Hollman, General Counsel, Baptist Joint Committee
Moderated by:
Melissa Rogers, Executive Director, Pew Forum on Religion & Public Life
MS. MELISSA ROGERS: Good afternoon, my name is Melissa Rogers. I’m executive director of the Pew Forum on Religion and Public Life. We’re very pleased to be able to host this event today, especially at the Brookings Institution, which is a partner in the efforts that we undertake. The Forum is a project supported by The Pew Charitable Trusts, and we’re very grateful for that support. It serves as a platform for research and discussion of ideas and issues at the intersection of religion and public affairs. We seek to serve as a true forum for the exchange of ideas rather than as an advocate behind any one perspective presented at our events.
It’s important to mention that we define the term public life in our title not only to encompass church/state issues, but also to encompass the issues of how religious communities are engaged in their larger community, and also how religion and faith play a role in the formation of public policy, generally speaking. We are fortunate at the Forum to have two outstanding co-chairs. E.J. Dionne is one of the co-chairs. He is a senior fellow at the Brookings Institution and a columnist at the Washington Post. He may be joining us a little bit later in the event. Jean Bethke Elshtain is our other co-chair. She is a noted author and professor at the University of Chicago. Unfortunately, Jean could not be with us today.
Today we’re going to discuss the decision that the Supreme Court handed down yesterday in the case of the Good News Club v. Milford Central School. We hope that this will be one of the first of a series of rapid response events that will react to Supreme Court decisions, as they come down, that touch on issues of religion in public life. And so we’re really glad to have this chance today to talk about the decision.
Let me just say a word of background about the decision. We’ll spare our speakers from having to do so. They can certainly add to this description later on, and I trust that they will. The case involved, obviously, the Good News Club, a Christian community religious organization and the Milford Central School. The Milford Central School adopted a policy regarding community use of its facilities, and part of that policy allows certain uses of the building, but prohibited use by any individual or organization for religious purposes. And that was interpreted to prohibit the use of the facility by the Good News Club.
As I mentioned, the Good News Club is a Christian club run by community residents for children, and I’m sure Tom Marcelle will be able to fill us in more about the aim of the Good News Club and how it operated in that particular community. Yesterday, the court delivered its decision and in a 6-3 opinion, found that the denial of the use of the school facility by the Milford Central School violated the club’s free speech rights, and that the constitutional prohibition on the establishment of religion did not justify that violation of the free speech rights of the club.
Justice Thomas wrote the majority opinion and I believe this is his first majority opinion on church-state issues, which was interesting in and of itself. Thomas was joined by Justices Rehnquist, O’Connor, Kennedy, and Scalia. Justice Breyer joined the opinion in part, and expressed certain reservations about potential Establishment Clause problems. And so he limited his joining of the majority opinion to the extent that it was consistent with his separately written concurring opinion, but certainly joined in the results of that decision. Justices Souter, Ginsburg and Stevens dissented from the opinion. Justice Souter, in particular, expressed concerns about the Establishment Clause, and felt that the case was wrongly decided, obviously. And Stevens wrote another dissenting opinion, and we may get some time to talk about it. It was kind of an interesting opinion, trying to divide up religious speech into three different categories, and to talk about how the state should approach religious speech, depending on which category the speech fell into.
Let me just turn to make a brief introduction of our panelists, who will reflect on the case. We have a very distinguished group of people to do so today. First, we have with us Thomas Marcelle. He had a good day yesterday, winning his first case that he had argued at the United States Supreme Court. In fact, Andrew Witmer of our staff contacted Thomas yesterday to ask him to make good on the tentative promise he had made to join us for this event, and ended up being able to break the news to him, that he had won the case. And so that was kind of interesting that we got to deliver that news yesterday. Mr. Marcelle graduated magna cum laude from the Cornell Law School, where he was editor of The Law Review. He worked in the Department of Justice Civil Rights Division before working at a law firm up in New York. And we’re very grateful to have him here today and for making the trip down on very short notice to be with us.
Next, we’ll have Elliot Mincberg. Elliot was very good to join us, also on late notice. We had asked the attorney on the other side, Mr. Miller, the attorney for the school, to join us. He thought that he was going to be able to and was unable to at the last minute. And so we are very grateful for Elliot joining us. Elliot is a very distinguished lawyer and thinker on church-state issues, and he will, as he always does, fill us in on a very important perspective on church-state issues. So we’re grateful for that. Elliot serves as vice-president, general counsel and legal director of People for the American Way. He received his law degree from Harvard Law School, magna cum laude. I’ve had the privilege to work with Elliot in many different respects, and can tell you that Elliot has litigated extensively over church/state issues, but also worked on a lot of consensus documents on religion in the public schools. And I’ve certainly appreciated Elliot’s work on all those scores.
We also have with us Holly Hollman, who is general counsel at the Baptist Joint Committee on Public Affairs, and an old friend of mine. Holly and the Baptist Joint Committee filed an amicus brief in the case, supporting the petitioners. And she’ll be able to fill us in a little bit about the Baptist Joint Committee’s point of view on this case. Holly received her JD from the University of Tennessee College of Law, where she was a member of the National Moot Court Team and The Law Review. She has a very sharp legal mind, and you have probably heard her comment on the president’s faith-based initiative debate that’s also raging at present.
Finally, we have with us Steve Sheinberg, who is assistant director of legal affairs for the Anti-Defamation League. He received his law degree from Emory University Law School. And Steve and the ADL filed on the other side of the case in support of respondent in the Good News case. And so we’ll be able to hear from him a little bit more about what prompted the ADL to file an amicus brief in this case on the respondent’s side. I’ve had the privilege of also working with the ADL for sometime on free-exercise issues, as well as these Establishment Clause issues, and I’m very grateful for that partnership and friendship that we’ve had over the years.
Let me turn it over to the panelists in just a moment. I can’t resist telling one story from the oral argument of the case before I do. Those of you who attended may remember this, and I’m sure Tom Marcelle does, but there was a moment in the oral argument where Justice Souter was pressing you, Tom, on trying to say, well, you know, if we write the opinion this way, will it mean that, or if we write it this way, will it mean this? And Tom was doing as best as he could under the difficult circumstances to answer the question.
And as you tried to answer that question, Justice Scalia broke in, as he often does, and says, “Trust me, Mr. Marcelle, we can write this opinion so that it does almost nothing.” [Laughter.] So with that, I want to turn that over to the panelists as an opening bid of a question for their commentary on exactly what this opinion does and does not do. So thank you very much. And, Thomas, you can join us now.
MR. THOMAS MARCELLE: Let me start there and then go back. Actually, the opinion, I think, is quite broad, and it doesn’t say almost nothing; it says a lot. And it says a lot in very stark terms that probably — issues that the court had left open from Lamb’s Chapel and Widmar and Rosenberger — it seems that they’re trying to put to rest, with respect to viewpoint discrimination and the Establishment Clause.
I’ll take it back and tell you just a little bit about the Good News Club, a little more so as we talk, you can have some appreciation of the facts. And I’m sure we’ll get into the esoteric legal theory. But for me, I lived this case four years, and it started with a trip out to Milford, New York, which is about 60 miles west of where I live in Albany, and about 10 miles east of Cooperstown, where you have the Baseball Hall of Fame. Then I met the Fourniers, and they told me their story.
And they formed the Good News Club, which is a Christian youth group that tries to teach moral values based on faith in God. And explicit in their instructions or the program is encouraging children to live a moral life. They have to put their trust, and their faith, and live their life according to the way that Jesus would. And that’s an explicit part of the program. And for years — well, actually, for a year and a half — the school district was kind enough to bus the kids from the school to the church, which, in a lot of senses, has probably raised a lot more Establishment Clause problems than the actual use of facilities.
But leaving that aside, unfortunately, the school ran out of money for the bus. And so Mrs. Fournier, because her daughter Andrea was part of the 4H — and the 4H had used the school right after their class — she said, “Oh, wouldn’t it be great now. We can’t get bussed. I’ll just have every Tuesday instead of coming to the church. We’ll meet at the school.” So they applied, and they were told, no, it was religious worship, religious instruction, and they would not be permitted pursuant to state law and pursuant to the constitution.
I heard the case, and this is probably one of the biggest mistakes I made in the case. I told them it was an open and shut case, and they had no problem. [Laughter.] We actually got an injunction; we filed a complaint in March. Within a month, the district court granted us a preliminary injunction to allow us to use the school for 18 months. And then, ultimately, because of some second circuit precedent, the district court vacated the judgment and the preliminary injunction gave judgment to the school district.
We appealed to the second circuit; the second circuit affirmed the district court, and by doing so, disagreed with some other courts that heard, actually, Good News Club cases out of the eighth circuit, and therefore presented a conflict. The First Amendment meant one thing in New York and another thing in Missouri, and we argued to the court that they should take the case and resolve it. And they did.
Before I conclude, I just want to give you a little history of the case. I just want to tell you how we presented the case to the court, because I think it’s important. And as you read the decision, it may give you a flavor. The very first words out of my mouth at oral argument was, this is a free speech case. Our goal and our tactic really was to persuade the court this was an equal access case, that religious speakers have the same entitlement to use public facilities as do the Boy Scouts, the Girl Scouts, and other youth groups that attend.
The school district, on the other hand, was trying to tell the courts, this is really not a free speech case. This is a case involving the establishment of religion, because when you’re involved with small children, it’s right after school; they really don’t have the make-up to distinguish between the Good News Club and what the school is doing. They may perceive an endorsement by the state. To which we argued, and it was accepted, certainly, by Justice Thomas, the parents are the decision-makers and not the children. No child can attend the Good News Club unless there’s parental consent.
And more importantly, we argued that there was a duality, a double edged sword that, yes, some children may perceive that the school endorses the Good News Club, but still, on the flipside, that other children may perceive hostility towards religion. And that would do as much harm to the Establishment Clause as endorsement. In particular, we argued that Andrea Fournier, who participated in the Daisy Scouts and the 4-H Club, that when she put on her Daisy Scout uniform, she was welcomed by the state, but when she put on her Good News Club uniform, I mean that figuratively, she was not welcomed; she was excluded.
And it was our view, if the Establishment Clause meant anything, that it was to protect the liberty of religious people to participate in broad public forums, and that it couldn’t be used as a method for censorship. And ultimately, framing the issue that way, the court, at least the majority of the court accepted that. And somewhat surprisingly, I think, Justice Breyer, certainly, tagged on to all the clear free speech discrimination of the case. He had some reservations with respect to the peculiar facts of the case, and kind of hedged his bets about the future. But I think the key to, in our view, winning this case in the Supreme Court was really having the court accept the basic proposition that this was about free speech.
MS. ROGERS: Thank you very much. That’s very helpful, and I’m sure we’ll get to more of the finer points in a moment. But I’ll go ahead and let Elliot give us a contrasting view. And, Elliot, I believe People for… joined in an amicus brief on the other side as well, which I failed to mention. So with that, Elliot, we’ll let you take the floor.
MR. ELLIOT MINCBERG: Thank you, Melissa. And I do want to say that it is a particular pleasure to be participating as a member of the Pew Forum, and I hope to be participating in more as well in the future. We did file a brief against Tom’s position in this case. But in the Lamb’s Chapel Case that involved a religious group that wanted to use school facilities in the evenings for a film series, we actually filed a brief on behalf of the religious group in that case. And I think it’s the distinction between those two cases, which, frankly, the courts didn’t pay very much attention to, that I think is the main reason why the Good News is, yes, you know we had to say it, bad news for religious liberty and for the nation’s schools.
The five person majority, excluding Justice Breyer, did not want to pay attention to the differences between student organized clubs at the high school level and adult led efforts to proselytize kids as young as six years old in the elementary school. And frankly, they didn’t want to pay attention to those facts. Now, I think it is very clear that depending on the circumstances, that there can be a reasonable perception by the reasonable six year old, if you will, of endorsement under the kind of circumstances we discussed.
That there is a line between tolerance of religious activity and a parent’s promotion of it, that, indeed, is why the Congress, when they passed the Equal Access Act, didn’t include elementary schools, because of exactly those levels of concern. I think this morning’s Washington Post illustrates this very well. The editorial in the Post today got it right on exactly this point of view. But in the news section, if you read it, there’s an article that says this decision is no big deal; look at all the other schools that have clubs.
What they talked about were high schools that had student led clubs, not the kind of adult led proselytizing at issue here. And one thing this issue clearly does is to open up elementary schools, which do have captive audiences of kids as young as six, to evangelism and other proselytizing activities. The effectiveness of that is illustrated in this case when the Good News Club moved from the church, even though there was bus transportation to the school, my understanding is the record showed that the number of kids participating more than doubles, illustrating just how effective that can be.
Now, of course, equality is important, under the appropriate circumstances. And we all know under the Establishment Clause, there are some circumstances where religion gets favored treatment; for example, the exemption from Title VII and many others. In our view, there is a need when there is a reasonable perception of endorsement — that may have been the case here, but we’ll never know, because of the poor development of the record — to treat religion differently.
I want to make three other brief points. First, schools that want to, I think, can avoid some of the problems caused by this decision, but the results of that, I think, will be bad for schools and bad for religion. I’ve counted, so far, at least six ways they can avoid it. First of all, they can close the forum all together, which I think would be a bad thing in terms of after school activities with kids. Second, they can try to focus between purely worship activities, worship divorced from the teaching of moral values, and the kind of activities taking place here.
It’s not clear what the court will do, but at least that question is open. The problem is it requires schools and courts to make those fine distinctions that I think is bad for schools and religions. Third, they can change the time of the forum. In fact, the Good News Club was the only club that wanted to meet right after school; the Boy Scouts, et cetera, met two hours later. And it’s my understanding that Milford is planning to do exactly that, or at least it’s proposing to do exactly that in response to this decision. Or, it may be possible, as Justice Stevens has suggested, to limit a forum, in this context, to people who want to have discussions about particular issues versus people that want to recruit.
For example, it would make sense, you would think, to say, we want to open the schools to community discussions about political issues, but preclude the Democratic Party or the Republican Party from engaging in recruitment activities on school property. That same argument could, in theory, be applied to religious groups, not foreclosed definitively by the decision. But again, those distinctions, I think are bad and not good for religions and schools. Cornelius is an example of that. The Cornelius case, where the Supreme Court ruled that so-called advocacy groups could be excluded from a forum on a combined federal campaign, where they wanted to solicit contributions.
Fifth, it may be possible to draw distinctions on forums based on identity of speakers. And finally, you can develop a better record to support the proposition that there is reasonable endorsement perceived in the case. After all, the principle that Justice O’Connor pointed out in that case, I think, remains, which is that when there is reasonable perception of endorsement by people in the public that the government is endorsing religious speech, there are still doubts or problems.
But I’m more concerned, frankly, about schools that don’t want to avoid this problem. I’m concerned about schools like the ones in which we litigated, at least the Herdahl case a few years ago, involving a school that, frankly, wanted to have captive audience prayer over the intercom and in every other place that it could. A school like that, I’m concerned, is going to make things that much worse for people in minority religions. What happens if teachers, for example, begin to lead the after school talks, which is not precluded here? What happens if the school doesn’t disclaim endorsement, which is not required here?
You can easily see schools of the type that the Herdahl family went into becoming much, much less hospitable places for children of minority religions, who are teased and made fun of because they don’t engage in the same activities all their six year old classmates do. My final point, though, is that we shouldn’t overemphasize the significance of this case. I do think that there are factual differences that could well come up in later cases. Nor is it correct, as some folks have suggested, that this opens the door for vouchers or so-called Charitable Choice. I think it’s already quite clear that this decision talked about non-government sponsored activities, which vouchers and Charitable Choice certainly are not. Thanks.
MS. ROGERS: Thank you, Elliot. Elliot and Tom both have raised a number of important points that I hope we get to later. You know, that’s going to be on people’s mind. What’s the import of this for future expression cases as well as funding cases? And then, also, the very interesting note about religious worship as opposed to other religious activities. And I’m sure that those of you who’ve already read the opinion noted in footnote four, there’s a very interesting discussion from the majority about that in the opinion.
And it’s interesting to note that there may be some common ground here about the fact that drawing distinctions between different types of religious speech may not be a good thing, but I think, perhaps we’ll see later on, what should be done, having accepted that proposition. So, I look forward to getting to that later. Holly, if you can go ahead, and then we’ll have Steve round us out at the end.
MS. HOLLY HOLLMAN: I organized my comments to fit the kind of format that I think we’re all taking here, by saying what does this ruling do, and what does it not do. The Baptist Joint Committee often is on the same side of religious liberty issues, as People for… and ADL, and a lot of groups, that in this case, took the side of the school district. The Baptist Joint Committee, however, joined a brief on behalf of the Good News Club. The reason we did so is because we view this case, as the club did, primarily as a free speech case. It’s not a case that is a threat to church-state separation, but, instead, it deals with the principle of equal access in an environment outside of government sponsorship, in a purely free speech way.
Why do we think this is the right result? One reason is because the policy at issue demanded this result. The policy that the school had adopted created this limited public forum that was rather broad. It was open for events pertaining to the welfare of the community. And they interpreted that policy to mean that they could have groups discussing moral and character development. Having done that, it was very difficult for them to exclude the Good News Club.
It’s extremely significant that the religious speech at issue here was not the speech of one of the school administrators or school officials. It happened after school hours; it involved only volunteer participation by the students, with their parents’ permission. And under these circumstances, we felt strongly that the club should not be excluded. We were pleased that Justice Breyer wrote separately and emphasized the free speech nature of the case by sort of drawing some distinctions on the Establishment Clause issue. I think that kind of shows him as a real swing vote as we look forward to these other cases dealing with the Establishment Clause. He’s not willing to quickly dismiss some of the concerns of the other side.
I think another really positive aspect of this case is that it affirms the right of religious groups to express their beliefs on the same basis as others in appropriate settings. I think it’s good news for religion because it underscores what we believe was already the law. Religion has not been banished from the public square or even the limited public square, where it’s been open in this way. I think that this case underscores that, while the law continues to prohibit school-sponsored prayer, as we learned this last term with the Santa Fe football case, where you had an equally strong opinion, 6-3, finding that the school prayer was inappropriate, was unconstitutional.
The court now just also joined in the prohibition on exclusion of private religious speech. We hope that this decision will help quiet the cynics who wrongly condemn government for what they characterize as a hostility to religion, and instead will promote the recognition that religious groups, where appropriate, have equal access to the public square. Some of what I’ve seen and perceive to be what the ruling does not mean has been reported in early media reports.
First of all, I think it’s important to point out that this case has a limited application to traditional Establishment Clause cases. It does not, as one of the wire services reported, significantly lower the wall of separation between church and state. The focus of the Court’s Establishment Clause statement was primarily based on supporting the
fact that it shows that the Court was following Lamb’s Chapel, and that Lamb’s Chapel should not have been distinguished based upon the age of the children involved.
I think it’s significant too that the court noted that government decisions do, very much, take into account the audience age and their perceptions. And I think the court affirmed that, but just created a line here, because the facts of this, arriving after school hours, without school sponsorship, in a way that those concerns were not present. Those concerns would very much be there if we were dealing with activities during the school day, where there was mandatory attendance by the schoolchildren.
I don’t think it is also implying that there’s any indication that school doors now must be thrown wide open to active, proselytizing, evangelical groups that will just now have free access to roam the schools. I think, again, there are limits, and you have to look at the particular policies that the school adopts. I think Elliot showed that there are lots of different options here that a school may enact to respond.
And lastly, again, I want to underscore another thing that’s already been mentioned. This case, for all its significance in this area of free speech and religious speech, does not have relevance to the other Establishment Clause areas there. That’s very important right now, including vouchers and Charitable Choice. The case deals with the principle of equal access in the context of free speech, and it doesn’t deal at all with the issue of government funding of religion.
MS. ROGERS: Thank you, Holly, great. Yeah, it would be interesting to get a debate going later, perhaps, about the Santa Fe opinion. I believe it was Justice Rehnquist who said that the majority’s opinion bristled with hostility toward religion in public life. And so, it would be interesting to engage everybody on what they think about that statement, and how that statement looks in light of this decision this term. Go ahead, Steve.
MR. STEVEN SHEINBERG: Thank you for having me here today. I’m very pleased to be here. First things first, I read in the Times today that the parties involved in this case, both the lawyers and the adverse parties, conducted themselves in the highest civility possible. And that’s something to take note of, because as we wrestle with these very hard questions, extremely emotional issues, as we go forward, it’s important that we still keep even a contentious issue in a civil context. And that only serves to advance the debate.
Obviously, having filed on behalf of the school district, I’m disappointed at the decision and troubled by it. I really got involved in the issue because it has an astounding concern with maintaining a high wall of separation between church and state. A high wall of separation between church and state has made it possible for minority groups to flourish in this country, particularly minority religious groups. So that’s our interest in this case. The League is also very committed to a robust conception of free speech. And obviously, this case turns on whether you think it’s a speech case or a religion clause case.
One of the things that I was particularly troubled by in the case was what looked like extreme damage to the idea that the tender years when it comes to youth and government sponsored religion — first of all, it’s a startling forum for me to have a court. It was startling to see the court describe elementary school students as being able to distinguish, by virtue of the fact that parents had signed a permission slip, between government endorsed and non-government endorsed speech. To attribute that kind of thoughtfulness to a six-year-old is, at best — that’s a very surprising comment on the state of education in the country. I would say we’re doing a good job if they can make that distinction. [Laughter.]
I was troubled by the legal formalism involved with the ringing of the school bell being the distinction between government speech and non-government speech, and making elementary school kids draw that distinction. Again, it was surprising to me that this is the place where the Supreme Court chose to draw the line. I’m also concerned that, at least for the implications to the Equal Access Act — now, my feelings about the Equal Access Act aside, the Equal Access Act has been a workable solution to how students are able to approach the school district, the schools, and what rights they have with regard to religion.
The decision looks to me to do violence to the Equal Access Act and the regime that it put forward. And I think that’s something worth talking about. And finally, I am concerned that this has eroded the Establishment Clause more generally. I see this as, first of all, bristling with hostility to the notion that the government has a duty to students to protect them from the appearance of endorsement. I think that that’s a positive duty in protecting the high wall of separation between church and state. And I think that that erosion of that duty will come back in many ways and in many future opinions. That’s all I’ll say now.
MS. ROGERS: Thanks, Steve. A number of other interesting issues on the table. The Federal Equal Access Act, I think most everybody knows that it’s the federal legislation that when a school receives federal financial assistance and lets in a non-curriculum related student club to meet during a non-instructional time during the school day, then they have to be open to any religious club that would want to meet that is similarly situated during this non-instructional time. But it specifically does not address the elementary school situation. And I believe that came in oral argument. In fact, there was a little bit of back and forth on exactly what it said and didn’t say.
MR. MINCBERG: As Tom pointed out, Justice O’Connor was a little unclear on that….
MS. ROGERS: Yes, she wrote the lead opinion in Mergens that dealt with the Federal Equal Access Act, but indicated that she needed a little refreshing about the federal statute, which was kind of fun to see. She’s a busy woman. Anyway, thank you all for this very thoughtful perspective. And also, I see so many of you in the crowd who have worked so hard and so long on these issues, and I want to make sure that we get your questions and comments introduced at this point in time.
So, if you would, let me ask you to raise your hand. We’ll get lots of questions in and lots of comments. We are recording this session, and we’ll put the transcript of it up on our website. So when you raise your hand, if you’ll wait until the mike comes to you, give us your name and your affiliation, and state your question and comment at that time. That will help make a better transcript for our website. So, I think we have at least two hands already. Steve Green there in the back, let me let you get the first one off.
Q: Steve Green, Americans United for Separation of Church and State. I want to pick up on a couple of things that both Elliot and Steve said, because I found this kind of an interesting opinion in many respects. And please, let me know if you agree with me or disagree. I think that, actually, if you look at this opinion just from kind of a technical legal perspective, I don’t see it changing the law, really, in very many respects. It seems to be quite in line with what the court had dealt with or they discussed in Lamb’s Chapel and Rosenberger.
So far as kind of the legal ramifications of this, I see this as being very, very minimal. But I then also agree with both Elliot and Steve so far as the practical ramifications of this, though. I think they are a little bit more significant because, to a certain extent, this fills in a gray area that a lot of people recognize, because we really had a lot of doubt, and a lot of people really didn’t know exactly where this type of access, whether it was allowed or not. And I guess I would like to have the panelists kind of say a little bit more on this.
And especially in relation to the Equal Access Act, because I do think I agree with Steve, to a certain extent, that this may have the effect of kind of undermining the Equal Access Act, the principles that were established as being student initiated conduct within a public school. And now, it’s kind of sending up this really interesting juxtaposition that if it’s at the high school level under an Equal Access Program it has to be student initiated, student run. But now, you can actually have outsiders coming in, in an elementary school, to do what is express evangelism. And that seems a little counterintuitive.
MS. ROGERS: And what Steve is obviously talking about too is that the Equal Access Act doesn’t address the use of facilities by religious community groups as opposed to student groups. And so, that’s one reason why this case was important and went to the Supreme Court. Tom, and Elliot, and anybody else who wants to weigh in, but let me let you all address that right away.
MR. MARCELLE: Well, first of all, I see a big distinction between the Equal Access Act in this case, namely that this is a voluntary act by the schools to open the forum to the community. The Equal Access, you’ve got to remember, is a student based forum for students, which the school promotes in its yearbook, in its messages, and it communicates to the school that its part of — the exact wording is, it’s important to the curriculum. This is something that’s outside the curriculum. The school chose it at 3:00 — was Milford’s choice — and as Elliot pointed out, they have other choices. But they chose to open it at three, four minutes after the bell rang.
And so the relevant community here isn’t the students. And this was, I guess, our argument, which Justice Thomas echoed. But the role of the community here is really the community writ large, that is, the public. And it’s a public forum run by the parents for the benefit of the parents and their children. And I can appreciate the notion that our children may have false perception, but that’s what they are. It would be false perception if the school’s endorsing the Good News Club, because, in fact, the school does not endorse it.
And, on the one hand, we have false perceptions. On the other hand, we have viewpoint discrimination, which the court has characterized as the most egregious form of free speech violation. And so somehow on the bounds that these false perceptions can lead to censorship of a particular viewpoint on morality, in this case, seems to me to skew the balance. And I think it is a penultimate paragraph on the Establishment Clause. Justice Thomas — and I think this is important and significant as we go forward: “We decline to employ the Establishment Clause jurisprudence, using a modified heckler veto, in which a group’s religious activity can be proscribed on the basis of what the youngest members of the audience might perceive.” And I think that would be my argument.
MR. MINCBERG: Yeah, I actually think Tom makes a very good point. I think Steve is absolutely right, that it is possible to read the law as not really changing things a whole lot. Because the record in the states, from 20/20 hindsight, doesn’t get into all of the issues about what kind of effect would it have on the kids. It wasn’t even formerly in the record that this was the only club that met at three o’clock, as opposed to the ones that met at five o’clock. So that I do think it is quite possible that with a different record this could, in theory, come out differently. But from a practical perspective, I think it’s going to have a greater effect on that, as Steve said.
The Equal Access Act is a great illustration of that. Technically, they are different forums, in a sense, under the Equal Access Act and under cases like this, as Tom is suggesting. When a school opens up an Equal Access Act forum, it is a forum which is designated only for student initiated activity. And if a non-student initiated activity wants to come in, the high school equivalent of the Good News Club, it seems to me it would be perfectly perfect saying, we haven’t opened our forum for adult led groups; this is just a forum for student groups, and that’s the way we want it. And as long as we’re consistent and treat religion and non-religion equally, that’s okay.
The question then becomes, what’s the high school’s policy, as Tom is suggesting, with respect to making facilities available after school. My hope is that, in most schools, because they do reserve the period right after school for student initiated activity, won’t have the kinds of problems that otherwise occur. But I do think that it could, number one, given all the practicalities and the difficulties in navigating not just the Establishment Clause but the incredible intricacies of forum doctrine, which makes the Establishment Clause look easy. [Laughter.]
And two, I think one of the clear areas where this makes a big difference is in the high schools or the elementary schools — concept of the Equal Access Act. Although, again, it would be required, as Tom suggested, that an elementary school open up a forum to other groups before a religious group, whether it was student initiated or not, could say, we demand the right to come in.
MS. ROGERS: Okay, let’s see, I think we have one here.
Q: Thank you. My name is Ryan Rockwood, Religion & Ethics News Weekly. I just have a real simple, practical question for all the panelists. What’s the impact on the schools going to be? If each of you could just take a brief comment on that, one at a time. What’s going to happen in the local schools?
MS. ROGERS: Okay, why don’t we start down with Holly and work our way backwards.
MS. HOLLMAN: That’s a good question for us to contemplate, although I think it’s pretty hard to predict. I think a lot will depend on where the school is and what their prior practices were — you know, schools like the ones that were reported in the Washington Post today that already have an open forum say that there won’t be much change. And I think it gives a lot of schools an opportunity to reevaluate whether or not they want to adopt a policy, whether or not their policy is sufficient to comply with the law, whether or not they may want to change their policy in a way that avoids some of the controversy that arose in this case.
MR. SHEINBERG: I worry that some of the age related discussions that the Supreme Court and other courts have engaged in before are at risk. You know, given we’ve moved in favor of various policies, because of high school students or college students, and here we have changed sort of the ball game with regard to age. As well as the districts and their day-to-day activities, it is hard to say, and it’s going to depend on the district. I do think it’s going to be tougher for districts to try to ensure that they’re not endorsing religious activity.
MR. MINCBERG: I do think that the net effect of the decision overall will be to open up more school facilities with captive audiences of young kids to evangelism and other religious proselytizing activity. How much of that will depend. As I said, I think schools can avoid the problems that creates if they want to. But I’m, frankly, more concerned about the schools that don’t want to avoid it, schools like the schools the Herdahl family goes to in Mississippi that, frankly, want to embrace it as much as they can. And I’m afraid will make people who belong to minority religions feel that much more like outsiders in their own school.
MR. MARCELLE: I think it’s been said well. I argued that, particularly with Justice O’Connor as a former legislator, I said the school district had broad discretion. And I think now, in light of this, they’re going to have to think about how they exercise their discretion. And I come from Upstate New York. And I don’t represent too many clients in Mississippi, and in Upstate New York, our problems are reversed. We have a law on the books that says no religious activity in a public form, even if it’s not school related. And you know, that’s Lamb’s Chapel, that’s trickled down now to the Good News Club.
And I’m on the other side of the coin where religious groups who want just equal participation have a hard time doing it under any guise. And I think at least in New York State, that education law 414, which was part of the landscape here we won’t get into. Certainly now, I think the school districts in New York State will have to really reevaluate their, per se, religious exclusion.
MS. ROGERS: Tom, I saw some suggestion in the papers that the school might be thinking about pushing the time that community groups are allowed to meet back to, say, five o’clock. Have you heard anything about that?
MR. MARCELLE: Yeah, I talked with the superintendent today and Frank Miller. And what I think they told me is pretty much how our discussion is going. They’re going to sit down with the school board. And the school board, which is reflective of the community is going to sit down and consider how the community should be able to use the public school. And you’ve got remember, in Milford, and I think this will have an impact, it’s 3,000 people, there are probably the school and is one other building in the town that really operate as a civic center. And I think the school board, which, of course, is elected by popular vote — I doubt very much it will shutdown the forum which I’ve heard it reported. To do that is unlikely, given the geographical location. I suspect that they’re going to have some tough decisions to make about what they want to do, and I don’t think they’ve decided yet. I think it’s a process they’re going to undergo, along with many school boards in New York.
MR. MINCBERG: As I said before, we found out when we were helping the school district prepare the case, that Good News is the only club that meets as early as three o’clock in the afternoon. The Boy Scouts and the Girl Scouts meet at five or so, and I expressed many times how nice it would have been if that was more clearly in the record or the case. But it is an indication, I think, of the fact that this will require — this, I think, is a good thing. School districts should be more deliberate in what they do.
MS. ROGERS: Right, and not to act out in knee-jerk fashion. Yes, you had a question.
Q: I’m Jordan Laurence. I filed my first Equal Access case in New York State in 1988. I was one of the trial attorneys in Lamb’s Chapel. I was the lead attorney in Bronx Household of Faith. And one of the things that I feel, just to get some perspective on this, there is a New York State law that bans all religious activity, although it permits basically everyone else in the community. You can meet for instruction at any branch of education; you can meet for social, civic, and recreational entertainment events, and any other use pertaining to the welfare of a community.
Every case, which there’s been probably a half dozen, up until this time, has involved adult groups that wanted to meet at night and weekends. So, if the Milford School District had been confronted by a senior citizens’ bible study that wanted to meet at midnight on Saturday, they would have been denied. And this was always the grounds. The second circuit has upheld these; they were reversed by the Supreme Court. The second circuit had a recalcitrant, rebellious response to the Supreme Court in the Bronx Household of Faith, and said, no, you can have a forum that anybody else can meet except the religious groups.
Tom’s case is not the case I would have picked to test this, because the school district was always turning them down on the grounds that they were religious, not because there were kids present. Now, this forum meant that at three o’clock, five minutes after the bell rang, labor unions could come in and meet, the garden club could come and meet; there could be debates, there could be television shows. This was under education law 414. Now, if we would have had a situation where the Boy Scouts can meet at three o’clock, but Good News has to wait until five, this would have been, I think, a more difficult case. But what they said was, you can’t meet at all; you can’t meet at midnight; you can’t meet at all.
I think the second circuit and what the Supreme Court was doing was rebuking a context of an unrelenting, anti-religious bias to exclude only religious speakers from this forum that was created there. And so, I just say that I think there’s a lot more than just the kids in this case. And that’s why Tom, we counseled him to bring up the fact that there’s a state law that shuts everybody out, not just these kid groups.
The other thing that I want to ask is, the Boy Scouts are a controversial group. What if there are gay students who feel that the school endorses, or there are vegan students who feel that 4H oppresses livestock? Would those be reasons that the school board could single out those groups and exclude them? And one other thing I would think is that in Lamb’s Chapel, there had been about 900 groups that had met, and this was the only one that had been excluded. Instead of four groups, if there had been 20, or 40, or 100 that were meeting at three o’clock, would we have had the same problem?
And I think then, it comes down to you’re basically penalizing the religious group for taking advantage of a policy that the school district set into effect. And if the other people in the community don’t want to do it, that’s not a nefarious conspiracy, that’s a fact that everybody else in the community isn’t availing themselves of the same right that the Good News Club did.
MS. ROGERS: Thanks, Jordan. I appreciate your comment, given the history there. And I know the Bronx Household; they tried to take that case up, and the court hadn’t taken one until this point in time. I’ll go ahead and let a couple of you answer. Steve, do you want to answer?
MR. SHEINBERG: I just think that in the elementary school context, particularly, the fact that there was a clear perception of endorsement, given the facts in this case, given the circumstances, I think that, you know – the question about, the point about the multiple participants, an elementary school is not like a university, it’s not like a broadly open public square. It’s, by definition, a narrowly tailored environment for the nurturing and teaching of children. I think that – so I don’t think there’s a good comparison to these more vibrant forms, like in Rosenberger.
But I do think that it’s very important when we talk about this being a town of 3,000 people that the small town affect does have some impact here. Just as a matter of policy, you’ve got individuals who will be uniquely affected. Maybe they’ll be mad at the small town. The fact is that you have individuals who are uniquely singled out as non-participants in this club. You have one Jewish kid, one Muslim kid who do participate in this and will be sent home at the end of the day while some 30 of his or her colleagues end up going down the hall into another classroom. You’ve got people who are – moments at the end of the day who will be teaching a different message that these other students won’t hear, a message that says live life according to these various religious….
MR. MARCELLE: Raise your livestock well.
MR. SHEINBERG: You’ve got a unique protection for religion in the Constitution. You don’t have a unique protection for livestock. There is no unique protection for livestock, and there is a unique protection for religion. I think that is something we need to focus on and take particularly seriously.
MR. MARCELLE: Let me add a couple of points. I do agree, frankly, that New York law on its face is problematic. I think the Supreme Court said that in Lamb’s Chapel. I’m not sure the adult case would come out as you suggested because of Lamb’s Chapel, which seems to suggest that it’s different when you’re talking about a film series or e-mail or something like that —
MR.MINCBERG: But Lamb’s Chapel raises different issues because the issue there, as I understand it, is religious instruction, which, in part, is an issue that the Court reserves in this case, about whether you can – over religious worship, whether you can consider religious worship to be something different. Does this decision mean that every school that allows the Boy Scouts also has to allow a church to use the facility for services at 3 o’clock in the afternoon? I’m not sure that it does because that footnote 4 says maybe, maybe not. We’re not really sure about that.
But the point I wanted to make is that I think Jordan is absolutely right on the time of day issue. I think this would have been a very different case if the issue was, is there a good reason why a religious group ought to meet at 4 o’clock rather than at 3 o’clock, or something of that nature, which I think gets to the key established issue, where you think that religion is different than vegetarianism.
MS. ROGERS: Would your position have been different if it had been a 4 or 5 o’clock meeting?
MR. MINCBERG: I think it may well have been. Steve and others talked about it who worked on this brief, and it may have been. It does make a difference. This was a situation where, again, the facts were not well developed, but where at least in theory you could be having teachers escorting their kids there right after school, et cetera, et cetera, as opposed to 4 o’clock when kids weren’t participating in after school activities, or gone already. And coming to an activity at the school at 4 o’clock or 5 o’clock is really more like opting in than opting out.
I think the problem that I’m worried about from this case is that, particularly in a community not necessarily like Milford, and not confined to the South either, the kind of community that I’m talking about in the Herdahl case, you’re forcing people to opt out if they don’t participate in a right after school activity, as opposed to letting them choose to opt in, to come back to school and hour or two hours later.
MS. ROGERS: Steve, would that have changed the ADL’s analysis of the case?
MR. SHEINBERG: If it had been a 5:00 case? The idea of the opt in-opt out is extremely important. Again, this can be more of a fact driven than perhaps we’d like for the purpose of this conversation, but I do think that you can, particularly given Lamb’s Chapel, you can set up the right kind of forum for activity. Of course if it were 4:00 or 5:00, I don’t think the Supreme Court necessarily would have taken this either.
MS. ROGERS: And Tom and Jordan, I was interested in the line that Souter says in his opinion on page six, “Otherwise, indeed this case would stand for the remarkable proposition that any public school open for civic meetings must be open for us as a church, synagogue, or mosque.” I was interested in your reaction to that statement.
MR. MARCELLE: Let me go back and preface it with this. I think that was something as we prepared for arguments we were worried about going down that slope, particularly with some of the more moderate justices. I mean, if you read Justice Scalia’s concurrence, you wouldn’t care. It seems clear that you have at least three members of the court, and maybe Kennedy, maybe, who would say it’s neutral and it’s open, we don’t care if a full-fledged mass that’s going on at 3 o’clock. All we care about is neutrality.
Now I think the issue probably tends to be more complicated for people like Justice O’Connor. They’re fact-sensitive, and I think probably – I’m just guessing – one of the reasons may be Bronx Household certainly set up a nice conflict, wasn’t taken. And I’m just speculating that some of the conservative justices figure we won’t be able to bring in the other two if we have a full-blown worship service. And if you were at oral argument, Justice Scalia was trying his best to say what was going on wasn’t worship.
MS. ROGERS: Yes, that was a very interesting exchange.
MR. MARCELLE: Justice Souter asked me if what was going on was worship, but part of that what goes on there is — no other way, when you sing songs to God and say a prayer to Him, that’s worship. My response was it’s still a viewpoint because the words are the words and what makes it a prayer or a hymn is really your internal attitude. But Justice Scalia, if you noticed, was hyper-sensitive to get away.
MS. ROGERS: As was Rehnquist. It was interesting to see the justices’ different impressions of what worship was. And some of them may be coming from a more high church tradition, thinking that if there wasn’t a priest at the front of the room officiating then that wasn’t worship. But those – and I speak for myself certainly, coming from a lower evangelical, you know, de-centralized tradition, thinking that worship is much more expansive than that more narrow definition, and that was a really fascinating exchange.
This side of the room. Yes, please.
Q: Larry Witham, Washington Times. A non-expert impression and question. Over the years the Court has tried not to define religion but invariably it has to, and we have a half dozen sort of one-liners that are famous down through the years of what religion is. This really seemed to have more of those than usual. Stevens giving the three kinds of religion. Thomas saying it’s not religion, it’s a viewpoint. And that’s still unclear to me. What’s the difference between a religion and a viewpoint. And then Scalia saying you can’t even talk about morals or ethics without arguing back to first principles. So you’ve got almost five or even more definitions of religion.
Which one’s going to prevail….? [Laughter.] And can lawyers like you pick one of those and argue new cases and precedents, or is this just sort of thought experiments the judges are doing that have nothing to do with, you know, precedent, so-called?
MS. ROGERS: Thank you. Anyone want to bite?
MR. MINCBERG: The answer is, I don’t think it provides a definitive answer. It’s not so much the definition of religion that they’re quarreling about, but what should religion be counted as being in this context? Is religion a viewpoint in the context of the public forum type case, or is it a subject matter. This is a discussion that they have all the time and haven’t quite resolved among themselves.
And what Stevens was talking about is again not so much the definition of religion but the different kinds of religious speech that are possible, and whether there’s an argument for treating some of them differently than others of them. And I think all of those questions somewhat remain to be answered.
I think a majority of Court, it is fair to say that the exclusion of, quote, unquote, “religious speech” from a forum constitutes a viewpoint-based action. And the reason that’s a magic word is that the free speech clause, if it’s viewpoint-based, it’s the least likely to be upheld, basically. If something’s viewpoint-based, if the Court — you know, I’m in a free speech case right now involving Internet censorship, and if the Court agrees that it’s viewpoint-based, I win basically. And similarly in these cases, the plaintiffs win if the Court agrees that it’s viewpoint-based unless a strong establishment clause holding can be made.
MR. MINCBERG: Well, see, now, usually, where people say it’s viewpoint versus content, that’s what First Amendment jobs do. But what they’re trying to do is take religious concepts that relate to issues like theology and stick them into the boxes of First Amendment doctrine, like viewpoint-based, content-based, et cetera. And frankly sometimes they’re putting square pegs into round holes when they do that.
MR. MARCELLE: It was very interesting. You have a couple of really interesting amicus briefs – there was one from Professor McConnell, who represented a group of theologians and scholars of religion who tackled this very issue and have argued in essence, kind of parroting Scalia’s concurrence, that with infusion of religion and viewpoint are almost indistinguishable anywhere you go.
Also there were 13 states led by the state of Alabama which took kind of a practical view. Their viewpoint was, please don’t ask us to make a decision of what’s worship, what’s not worship, what’s religion, what’s true religion, because then we have to tell our state officials, we have to send them out to look at people and basically act as theological courts saying, yes, you cross the line.
In oral arguments at the Second Circuit we spent a great deal of time arguing whether this was religious instruction and religious worship or teaching of moral values. Those are the types of things that from a policy, outside of the law I think it’s better the state really extricate themselves from, that they should not really be looking at what constitutes worship and what doesn’t because ultimately that’s a subjective call and it also really isn’t a good business for the state to be in, judging what’s religion. Again, that’s more of a policy call than a constitutional – part of it’s constitutional doctrine, but I think it’s wise the state remain doing what they do.
MS. ROGERS: And Justice Scalia makes that point at the end of his opinion, saying that the courts were incompetent to do this, applying the distinction would require state monitoring of private religious speech with a degree of pervasiveness that we have previously found unacceptable. So that certainly makes the point that Tom was.
Q: Richard Foltin, American Jewish Committee. Given this discussion, I wonder, and I understand the Court has reserved the issue of whether or not there’s religious worship can in any way be not allowed in these kinds of forums. But I wonder if I could have observations from the panelists whether as a practical matter when the Court is presented with a situation where there’s clearly religious worship going on, whether it’s any longer going to be feasible to prevent that from taking place. Whether in fact we are not at the situation now that Justice Souter has cautioned against, that there’s going to be no way to avoid turning any of these forums into a church or synagogue or mosque because all one needs to do to bring the topic, the content of a forum within the subject matter that is the subject of the forum is to say we’re going to discuss about or think about this issue, now let us pray on it. And then of course because, as Justice Scalia says, you always have to go back to first principles to discuss any issue, any prayer ipso facto relates to the content of the discussion.
So we’ve now reached the point where in fact Justice Souter is correct and the logic of this case means we’re no longer going to be able to prevent explicit worship services from taking place in schools and in other public forums.
MR. MINCBERG: Well, of course, Justice Souter tried to suggest that isn’t what the opinion means, unless you trigger it in a simplistic way that some have suggested. But I do think you raise a very good point. I mean, in a way this is kind of the reverse of the crèche cases. The crèche cases, the Supreme Court says that in order to avoid the notion that this is something that is religious, you have to have a certain number of reindeer and other things to secularize it. So by the same token you could easily have a situation where it’s a worship service, but you’ve got to have a little bit of non-prayer in there to make it not what Thomas called a religious worship divorced from the teaching of moral values.
I think the answer to that is, we don’t know. And I think it is going to be very difficult. It would be quite easy, certainly depending on what the future composition of the Supreme Court is, for the Court to say there is no real difference, and to say that with a few small modifications the mosque, the synagogue, the church may be able to argue that they’ve got an untrammeled right to use the facilities. But on the other hand, I think some of us would argue, as much as we’d rather not make that distinction, now that the Court has put us into this business, better to try to make that distinction than to say that anything goes.
MS. ROGERS: And, Elliot, what — describe what is much different, or what is so threatening in your opinion about if there was a religious worship service on the public school site at, say, 5:00 on a Wednesday afternoon?
MR. MINCBERG: Those atmospherics make a difference. The hypothetical that I used I remember Lamb’s Chapel as we were formulating our position there is, what happens if a group wants to rent a school to have vesper services at 3:00, right after school.
MS. ROGERS: Move the time to 5:00.
MR. MINCBERG: I think the answer is, it depends. I think Rich would argue, because he and I have talked about this before, that almost any regular association of a school building with a church or a synagogue so identifies the state with the church literally that it creates a problem. I would say that at the very least it depends on the circumstances, but I can easily envision circumstances under which regular right after school use would be a problem. But I think Rich would probably take it even a step further than I would.
MS. HOLLMAN: On that point that you’re making concerns the regularity and a connection there, as opposed to the actual content of what happens at the meeting because that is a very difficult distinction to make between what is a limited viewpoint and religious impression versus full-blown worship, and do we really want the Court making that decision. I think the best discussion of it was probably in Judge Jacobs’ dissent in the Second Circuit opinion, that really talked about how difficult it is to distinguish between the religious viewpoint versus the religious worship.
MR. MARCELLE: And the difficulty is you’re going to have a firm collision of free speech law and religious law here, because there’s no question that in terms of type of activity the school district could say we want these types of activities but not those types. And from a commonsense perspective, worship services is a different type of activity than meetings after school with kids. But of course, all of you folks with a background in other activities would say, no that’s not true. So you’re going to have an immediate collision of these issues, I think, as this develops.
MS. ROGERS: But it’s interesting to note that the difficulties that you have with it would be timing and in terms of the domination of the forum and things that, you know, I think a policy could make adjustments for and not – I’m trying to figure out if there is some difference of kind that is a threat for Rich or anyone else about that question between religious worship and religious instruction, which some see as much more fluid a concept than others.
MR. MARCELLE: It’s very funny because having been through oral arguments with Judge Miner and having read his opinion, he told us what we were doing was a worship service. He said, do you open in prayer? Church opens in prayer. Do you read the Bible? The church uses a Bible. Do you explain what the Bible means? The church explains. Do you sing a song to God? The church sings a song to God. And you close in prayer, they close in prayer. You’re a church. He told me just that.
The problem is the components don’t always – the parts don’t always equal the whole as you add them up. I think, and I argued strenuously in the Second Circuit and certainly in my brief, that the label doesn’t matter. What matters is what the speech activity is geared to.
I was happy to see footnote four. At the end of footnote four of Justice Thomas’ opinion kind of addresses this with Justice Souter, whether it’s a worship service. It’s not. Regardless of the label Justice Souter wishes to use, what matters is the softness of the club’s activity, which he concludes are material use and activities in Lands Chapel and Rosenberg.
I think the labeling aspect to me is problematic because you get into state monitoring, issues that I think raise establishment clause problems on the other side of really the entanglement of the state and the church.
MS. ROGERS: Justice Thomas may get in trouble with his clergy person, however, as he says that the club activities do not constitute “mere religious worship.” [Laughter.]
Q: Marty Lederman from the Department of Justice. I am speaking here solely for myself. I have one comment on the endorsement problem and then a prediction about the next series of cases. I share the concern about the perceived endorsement of religion, particularly by young schoolchildren. I have a seven-year-old daughter and I don’t want her to perceive that the school is endorsing religious activity, or for that matter many other controversial activities that might occur in the school.
But it has always seemed to me that this case was a very easy one because even if the state has an obligation to dispel that perceived endorsement, there are many ways short of a total exclusion that it could do that. And it may have a constitutional obligation to dispel that endorsement, either by putting the time off, if that’s one solution. Or, as Pinette suggests, and Justice O’Connor and Souter’s opinion there suggests, by explaining to the children that a first-come, first-served, you know, open forum policy does not mean that we endorse everything that happens within the school.
I think that six- and seven-year olds can understand that, and it may be the obligation of the school to explain it to them. Maybe that’s wishful thinking.
MR. SHEINBERG: Because your seven-year-old is so bright….
[Laughter.]MR. LEDERMAN: She’s quite representative. I really do believe that that is a concept that they do understand. Their teachers treat them that way. They pick lots to decide who’s first in line and they take turns deciding who should present show and tell, and they can understand that the same principles apply.
My prediction is that the next series of cases will involve conditions that schools and other public parties place on access to forums and access to clubs, the Hsu case in Second Circuit is an example of that. Many schools will prohibit people using their buildings from discriminating on the basis of race, sex, religion, sexual orientation and the like. And the next series of cases will be whether the state can and/or must exclude religious groups from such prohibitions.
MS. ROGERS: Steve?
Mr. SHEINBERG: I want to amplify your point about an obligation of a school district to protect students against the appearance of endorsement. I think that when you look at public schools and the sort of unique place in establishment as well as jurisdiction, that’s one of the reasons why I think the case ultimately ends up being so troubling, is because the duty of school districts seems to be somehow lessened. Can I say with certainty that six- or seven-year-old would understand the disclaiming message? I think it’s a whole series of obligations that would inure to a school district to positively and pro-actively ensure that that message of endorsement isn’t there.
In the case of elementary school students, and in the case of worship service more is better in protecting, making sure that there’s no appearance of endorsement.
MS. ROGERS: Mary, did you have a question, and then we’ll go to the gentleman in the back.
Q: Mary Leonard with the Boston Globe. I understand that you shouldn’t make a leap in this case to charitable choice or to vouchers, but I did want you to address the question that Melissa I think asked a while ago, which is the Court’s attitude toward religion in the public square generally, and I guess even to Rehnquist’s comment about bristling with hostility. Where does this fit in in some sort of trend line or continuum of Supreme Court cases and attitudes, I guess, toward religion?
MS. ROGERS: Who wants to start? Elliot?
MR. MINCBERG: I’ll start. I think it fits in quite well, frankly, with this current Court on where they are, which is four justices very clearly on the side of the so-called neutrality doctrine that Justice Thomas has talked about. Three very clearly not on that side, much more interested in what one might call traditional church-state separation. And two, Justice O’Breyer squarely in the middle. And all these cases depend on how they’re going to vote.
O’Connor was interestingly silent. She didn’t write an opinion or join an opinion. My guess from oral argument in part is that she just kind of bought that the school district didn’t do a very good job in this case, she was not interested in sending it back for more development. And on these facts, these facts, she was comfortable with the majority opinion. But I don’t think she would have actually disagreed with some of what Breyer was suggesting if the facts had been different. I think that’s the line that you’re going to see if, for example, the Court takes the currently pending Cleveland voucher case, which our opponents have already filed cert in and we have to file response to in about a week.
I think it’s very clear that there are four votes for just about any voucher plan that you can think of. I think it’s pretty clear that there are three votes against it, and it’s equally clear that anybody who could get those last two, I’d like to buy their – [Laughter].
MS. HOLLMAN: I agree with Elliot’s assessment there, and I think we can look back at the most recent case where this discussion was brought up, in Mitchell v. Helms, and I think in that case at least it’s more arguably analogous as far as predicting future Court activity and where it will come out. I think because this context, the club case in the free speech area and after hours doesn’t involve any kind of funding issues, they do have less to tell us about where they come out than perhaps Mitchell v. Helms.
MS. ROGERS: We had a question in the back. We’ll close with these last two questions here.
Q My name is Richard Witter. I serve on the board of directors of the Interfaith Conference of Metropolitan Washington. For the past several years we’ve been conducting workshops with school administrators and teachers about the teaching about world religions in schools. I’m wondering if there are court cases which pertain to interreligious activities in schools and on school property. Even the idea of after-school interreligious clubs, which may wish to get together for debate and discussion and dialogue about interreligious affairs, or even the fact of conducting an interreligious service, where you would have prayers from several different religions, where you may have readings from sacred writings of several different religions, but each one belonging to that club agreed that this was a good thing to do.
I just wonder if there are any court cases that pertain to interreligious activities.
MS. ROGERS: Ecumenical question. We don’t seem to know of cases dealing particularly with that, but I think the Court treats religion as religion, regardless of whether it’s interreligious or religious, so I would expect the Court to treat it the same way as it treats religion in other cases.
MR. SHEINBERG: There’s no – I mean, the idea of getting together to discuss religion sort of an objective, non-religious way. I think the Court has spoken about that kind of thing. I can’t see that, just in a hypothetical, I don’t see how it would run afoul.
MS. ROGERS: Yes, I just think if it’s going to be religion then it’s going to treat it as religion.
MR. SHEINBERG: Yes, really religion.
Q: My name is Chip Lupu. I’m from George Washington University Law School. I want to get back to this question about religious worship, which I think we’ve kind of danced around and not really ever faced squarely. The last set of answers I heard were, well, it’s hard to tell what’s worship and what’s not and the state shouldn’t try to distinguish, and that’s an interesting and important and valuable answer. But let’s suppose we’ve got something that everyone on the planet will agree is “mere religious worship,” and I want to put it in a public school building but I want to put it in 8:00 at night, and there are no children there without their parents’ permission and consent and their parents alongside them, and there are disclaimers at every meeting that takes place in this school building at 8:00 at night, whether it’s a Democratic Club or the 4-H Club, or the let’s stop the speed bumps down my street club, or the religious worship, that this is a private meeting and the states does not sponsor or endorse it.
On those facts, is there something wrong with a worship service in the public building in that sort of forum? And what is it, if there’s something wrong. I don’t want to know what the various justices would say.
MR. MINCBERG: One thing that’s important in terms of understanding, it is clear to me that if it is “mere religious worship,” whatever the hell that means — pardon that —
MS. ROGERS: Easy now.
MR. MINCBERG: I couldn’t resist. The school district could as a matter of public forum law exclude it because you could argue that it’s a different kind of use than other kinds of things. But whether it should, I find a troubling question. And I actually would love to turn to one of our audience members, if that’s okay, unless there are panel members who want to talk about it, because Rich is a person who I know personally who has been the most concerned, even in that hypothetical, to saying at 8:00 every evening or every Saturday evening, that there’s an identification there that he’s concerned with.
MS. ROGERS: Let me let Tom, and then we’ll get Rich in, and anybody else who wants to comment on the panel.
MR. MARCELLE: I often think religious worship is a viewpoint. If under the scenario Chip laid out you could have someone come in and put on a satire of religion in a play, or make fun, it could be “Our Father” and at the end say, isn’t that goofy. Well, if you can say, isn’t that goofy, you should be able to say amen. And what makes one worship and not worship is your viewpoint on those words. If I hold them sacred, I could be excluded. If I hold them in derision, well, welcome to the forum.
I think the state has no business telling you you’re in or out based on your attitude. I think that’s what viewpoint discrimination is, is that the state says, I don’t like your attitude, is not a basis for excluding you, whether it be religious speech or satire.
MR. MINCBERG: But the state has an obligation to make sure that, at the least, at the very least of its obligation, at the risk of repeating myself, has the obligation to make sure that it doesn’t appear to endorse.
MS. ROGERS: And that’s the interesting question, if we sort of bear harder on that and say it doesn’t dominate, there is no endorsement, is there a sense in which that is still of some concern to people. Rich, would you like to throw in your comment, since Elliot –
MR. FOLTIN: On this last point, one concern I have about the opinion is not that they are saying that you have to allow religion to be part of the discussion on a particular issue, but that in a way the Court’s opinion leads one to not be able to apply to an event or a speech in which religion is part of the content the same test in deciding whether or not this is appropriately within the forum as one could in other circumstances, so that in effect, if that’s correct, then religion gets treated not the same as other forms of speech, but differently. That is, it gets even more protection in these kinds of forums. I think maybe that’s not the way this decision is going to play out, but it is a concern I have.
On the issue of allowing worship services to take place in schools, the concern I have that Elliot is alluding to is a very particularized one and I think would depend on a very particular set of facts. That is a situation not in which a worship service is taking place because a particular event is taking place and it’s been provided for, the forum has been allowed in the same fashion as for any other member of the community but a situation, say, where God forbid a house of worship burns down, and for a very extended period every week at the same time there is a worship service going on in a particular location at a particular time. And to add to the hypothetical there’s nothing else like that going on in the school, where every week the forum is being used for this particular purpose.
I would be concerned that a particular point, and there are a lot of particulars here, that begins to look like a union, a symbolic union of government and religion. But where that comes, at what point one would say that’s actually taking place I think that would be a difficult line to draw. Certainly for a short period of time, again we’re talking about what a school might be allowed to allow, and here we’re talking about that as distinct from what it’s being forbidden from doing, I certainly wouldn’t have a problem with a school saying on a Sunday morning because for a very temporary period of time a church is not available to be used for worship services the school district is going to say, okay, we’re going to let you come in and have services. I wouldn’t see a problem with that.
But I do think over an extended period of time that there becomes an issue.
MR. MINCBERG: The short answer to Chip’s question, then, I think is that in your hypothetical we’re not likely to have a problem, and that a problem does come when there is a reason to have this perceived endorsement that Richard is talking about in his hypothetical.
MS. ROGERS: I appreciate that clarification and it sounds like there is some more interesting discussion that we can have around that issue.
I want to thank a really tremendous panel for doing an excellent job today, and a tremendous audience. Thank you so much for those wonderful questions and comments. Let me also thank the Pew Forum staff who worked so hard to turn this event around quickly. I want to thank Staci Simmons, our associate director; Amy Sullivan, our editorial director; Andrew Witmer in the back; Nicole Lake and Barrett Emerick for a really outstanding work to bring this event together. Thank you so much and we hope to see you next time.
