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It may well be that the only thing more difficult than reading a religion clause opinion by the U.S. Supreme Court is attempting to explain the decision. By now, most agree that explaining a ruling by the Court often takes one far beyond the boundaries of the case itself into the very climate in which the justices operate. After the 2000-2001 term, decision-making by the U.S. Supreme Court on matters of religion has become a high-stakes tug of war — with participants occasionally switching sides. This fact was driven home in a most profound way in two cases that will not likely be connected in the minds of most observers. But the rulings of the Court in Good News Club v. Milford Central School, [FOOTNOTE 1] and City of Elkhart v. Books, [FOOTNOTE 2]should remove any doubt about the resolve of the competing camps in future struggles. In Good News Club, the Court held that discrimination on the basis of religion violated the U.S. Constitution, even in the context of parochial access to nonreligious public facilities. The justices held that denial of access to public facilities, solely on the basis of religion, would violate the free speech rights of a private religious group. The establishment clause, opined the Court, permitted neither preferential treatment for, nor discrimination against, religious groups and, therefore, did not provide justification for abridging the exercise of free speech rights. But the Court refused to hear an appeal by the city of Elkhart, Ind., in a case involving the ordered removal from the town square of a monument on which the Ten Commandments were inscribed. This left standing a ruling by a divided panel of the 7th U.S. Circuit Court of Appeals that the six-foot pillar violated the establishment clause. The majority found that the public display of the monument did not have a secular purpose, using the test from Lemon v. Kurtzman. [FOOTNOTE 3] In what at first glance would appear to be odd bookends, the two cases are reminders that a settled formula for resolving disputes involving religious expression is still beyond the reach of the Court. Left unanswered after the term is why the less-compelling issue — the rules governing private access to a limited public forum — is reviewed by the justices while a long-standing conflict in law — the rules governing public acknowledgment of religion in civic life — is left to fester. One can, with only a modest effort, establish the ordinariness of Good News. It invokes law that is firmly established despite its recent vintage. In September 1996, the local Good News Club — a private Christian organization for children aged 6 to 12 — sought permission to hold weekly after-school meetings at the Milford, N.Y., Central School. The interim superintendent denied the request on the ground that the club’s activities amounted to “religious worship,” which would have violated the community-use policy governing after-school public access to the facilities. Once attempts at informal resolution proved unfruitful, the Milford Board of Education adopted a resolution formally rejecting the club’s request for use of Milford’s facilities. The educators characterized the club’s activities as the equivalent of religious instruction and Bible study, and declared such use a violation of the community-access policy, which prohibited use of the facilities for religious purposes. The club filed a discrimination suit and sought a preliminary injunction to prevent the school from enforcing the resolution. Reversing the 2nd Circuit’s affirmation of the district court, the high court majority held that the educational policy violated the free speech rights of the Good News Club. RULING BASED ON FREE SPEECH The justices, led by Justice Clarence Thomas, examined prior establishment clause rulings and found no concerns important enough to outweigh the free speech rights of the students nor to justify the educational policy. In Lamb’s Chapel v. Center Moriches Union Free School District, [FOOTNOTE 4] the Court held that a school district violated the free speech clause of the First Amendment when, after opening a forum, it excluded a private group from presenting films at the school, based solely on the films’ discussions of family values from a religious perspective. In Rosenberger v. Rector and Visitors of the University of Virginia, [FOOTNOTE 5] the Court ruled that a university’s refusal to fund a student publication violated the free speech clause when the denial occurred in the context of a generally funded student activities program. The Good News majority explained that the parties’ stipulation that the school represented a limited public forum facilitated the Court’s decision because the rules regarding a limited public forum had been previously espoused. The Court turned to a two-pronged test to determine whether the forum’s limitations on a particular kind of speech were unconstitutionally restrictive: Any restriction must not discriminate against speech on the basis of viewpoint, and the restriction must be reasonable in light of the purpose served by the forum. Applying this test, the majority reasoned that Milford’s restriction constituted viewpoint discrimination, especially in light of the purpose served by the forum: for instruction, and as a meeting place for social, civic and recreational groups. The majority noted that Milford interpreted its own policy to permit discussions of character and morals from a religious viewpoint, and it concluded that the quintessential effect of the club’s activities was to discuss character and morals from its particular (i.e., Christian) viewpoint. Therefore, the school had unconstitutionally discriminated against the club. The majority saw this ruling as simply reaffirming the holdings in Lamb’s Chapel and Rosenberger. The Court also concluded that there were no establishment clause concerns sufficient to justify Milford’s unconstitutionally depriving the club of free speech rights. Although a state interest in avoiding an establishment clause violation may be deemed a “compelling” justification for abridgment of other constitutional rights, that interest might not be sufficient to justify viewpoint discrimination. The Court did not decide that issue, but stopped at ruling that the school’s policy lacked the neutrality necessary to be constitutional in the first instance. Finally, addressing the school’s (and the dissent’s) argument regarding the potentially coercive effect of permitting the club to meet at an elementary school, the Court refused to “employ Establishment Clause jurisprudence using a modified heckler’s veto, in which a group’s religious activity can be proscribed on the basis of what the youngest members of the audience might misperceive.” [FOOTNOTE 6] After Good News, there will be a painful day ahead for many school districts. These educators, serving heterogeneous communities, will discover that while Good News may make good law, it does not necessarily make good policy when attempting to manage a limited public forum. The coordination and monitoring necessary for the initial authorization and ongoing compliance of expressive groups may contend with the underlying education mission. After Good News, the closing of the educational forum may become Plan A on the administrator’s policy list. THE REFUSAL TO HEAR ‘ELKHART’ It is hard to square the refusal by the Court to hear the Elkhart case except to characterize it as a case of avoidance. It is clear that a ruling of any kind would be welcome on the standards that apply to the plethora of religious monuments in civic life. The larger question is: When does official acknowledgment of religion in community and civic life cross the line and become unlawful establishment? In Elkhart, the trial court ruled that the city monument was constitutional, using the Lemon test, where the government must prove that it had a secular intent, that its action could not be perceived by a reasonable person as an endorsement or disapproval of any particular religion and that the body isn’t entangled in religion due to the action in question. The appellate panel reversed this ruling. The position taken by most state and local governments is that monuments of this type are sufficiently historical and cultural to diminish the religious message. Opponents argue that a reasonable observer would see the monument as an endorsement of religion. The Court has taken an ad hoc approach to most disputes involving religious symbolism in civic life. Its patchwork of decisions contains a variety of apparent inconsistencies. For example, against the result in the Elkhart case are other acceptable uses of religion: the figure of Moses receiving the Ten Commandments inside of the U.S. Supreme Court; the use of “In God We Trust” as the nation’s motto; and the use of chaplains by the U.S. Senate and the House of Representatives. As the 2000-2001 term ends, the inquiry has turned to grander, ultimate questions: What precisely are the religion clauses supposed to accomplish? Do the concepts of free exercise and establishment have any relevance in the modern civic square, where diversity is more common than critical mass? Are the historical views of the framers and other 18th-century legislators helpful beyond settling disputes over issues debated in the constitutional convention? The petition for a review of these issues is denied. Bernard James is professor of constitutional law at Pepperdine University. He is contributing editor to the ABA’s Preview Of the United States Supreme Court Journal. Stephen O’Dell is an associate at Anaheim, Calif.’s Marlin & Saltzman. ::::FOOTNOTES:::: FN1 121 S. Ct. 2093 (2001). FN2 121 S. Ct. 2209 (2001). FN3 403 U.S. 602 (1971). FN4 508 U.S. 384 (1993). FN5 515 U.S. 819 (1995). FN6 121 S. Ct. at 2106.

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