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• 2ND CIRCUIT COURT

Good News Club v. Milford Central School , No. 98-9494

JACOBS, Circuit Judge , dissenting:

The area of my agreement with the majority is substantial. Thus I agree that the school district has created a limited public forum. See Cornelius v. NAACP Legal Defense & Educ. Fund, Inc. , 473 U.S. 788, 802 , 105 S. Ct. 3439, 3449 (1985). And I recognize that restrictions on speech in a limited public forum withstand First Amendment scrutiny if they are reasonable and viewpoint-neutral. See Rosenberger v. Rector of Univ. of Va. , 515 U.S. 819, 829-30 , 115 S. Ct. 2510, 2517 (1995); Bronx Household of Faith v. Community Sch. Dist. No. 10 , 127 F.3d 207, 211-12 (2d Cir. 1997). "Control over access to a nonpublic forum can be based on subject matter and speaker identity so long as the distinctions drawn . . . are viewpoint neutral." Cornelius , 473 U.S. at 806 , 105 S. Ct. at 3451; accord Lamb's Chapel v. Center Moriches Union Free Sch. Dist. , 508 U.S. 384, 392-93 , 113 S. Ct. 2141, 2147 (1993). In a limited public forum, content discrimination "may be permissible if it preserves the purposes of that limited forum"; but viewpoint discrimination "is presumed impermissible when directed against speech otherwise within the forum's limitations." Rosenberger , 515 U.S. at 830 , 115 S. Ct. at 2517. "The principle . . . `is that the First Amendment forbids the government to regulate speech in ways that favor some viewpoints or ideas at the expense of others.'" Lamb's Chapel , 508 U.S. at 394 , 113 S. Ct. at 2147-48 (quoting City Council v. Taxpayers for Vincent , 466 U.S. 789, 804 , 104 S. Ct. 2118, 2128 (1984)).

It is in the application of this standard to the facts of this case that I respectfully dissent.

* * *

In deciding this case, we are called upon to compare the subject matter of the speech offered by certain groups that are allowed to hold meetings at the Milford Central School with the subject matter of the speech proposed by the Good News Club. The majority posits (and I agree) that some groups allowed at Milford Central School present guidance on a range of common moral subjects, such as honesty and self-control. The majority then rules (and I agree) that the board is obliged to accept "an organization seeking to teach morals from a religious perspective." See Majority Opinion at [15] , [21-24] [hereinafter "Maj. Op."].

The majority rules against Good News nevertheless on the basis of two complementary distinctions. First, although the school district would be obliged to accept "an organization seeking to teach morals from a religious perspective," the school district is not obliged to accept a "religious youth organization that proposed religious instruction and prayer." See Maj. Op. at [15] . Second, the majority emphasizes that the Club discusses "religious material through religious instruction and prayer" rather than "secular subjects from a religious viewpoint." See Maj. Op. at [20] (citing Bronx Household of Faith , 127 F.3d at 215).

On the basis of these two distinctions, the majority concludes that the Club's rejection was based solely upon the subject matter of its meetings and not upon its religious viewpoint. In my view, when the subject matter is morals and character, it is quixotic to attempt a distinction between religious viewpoints and religious subject matters.

Generally, I adhere to the opinion of the Eighth Circuit in Good News/Good Sports Club v. School Dist. , 28 F.3d 1501 (8th Cir. 1994), which decided the same question in what seems to be a substantially identical context. In the Eighth Circuit case, the Good News/Good Sports Club (for convenience, the "Missouri Club") challenged a policy adopted by a school district in Missouri. The policy allowed various scouting organizations, as well as the school's sports teams, to use junior high school facilities after school, but denied access to other organizations. See id. at 1502-03 (providing access for Girl Scouts, Boy Scouts, Cub Scouts, Tiger Cub Scouts, and Brownies). The Missouri Club, along with its members and their parents, sought injunctive and declaratory relief under 42 U.S.C. § 1983 on the ground that the policy violated their First Amendment right to free speech. See Good News/Good Sports Club v. School Dist. , 859 F. Supp. 1239, 1241 (E.D. Mo. 1993). The district court entered judgment in favor of the school district, but the Eighth Circuit reversed on the ground that the Missouri Club and the scouting groups both offered messages on the topic of moral development, and that it was impermissible viewpoint discrimination to afford access to the Scouts while denying access to the Missouri Club solely because the latter's approach to moral development was religiously grounded. See Good News/Good Sports Club , 28 F.3d at 1505-07.

The Missouri Club and the Club in this case have nearly the same name and are nearly identical in their stated purposes and activities. Compare Good News/Good Sports Club , 28 F.3d at 1502 ("The Club is a community-based, non-affiliated group that seeks to foster the moral development of junior high school students from the perspective of Christian religious values. . . . Club activities include skits, singing (including Christian songs), role playing, Bible reading, prayer, and speeches by community role models. The Club is religious, but non-denominational."), with Good News Club v. Milford Central Sch. , 21 F. Supp. 2d 147, 149 (N.D.N.Y. 1998) ("Although the Club is nondenominational, its stated purpose is to instruct children in family values and morals from a Christian perspective. . . . [A] typical meeting includes an opening prayer, singing of Christian songs, memorization, recital, and discussion of Biblical verses and scripture, and a closing prayer.").

The majority criticizes the Eighth Circuit opinion on the ground that it "apparently took for granted that the Good News/Good Sports Club's activities amounted only to speaking on moral and character development," and thereby adopted the unexamined assumption that the discrimination in question was viewpoint-based. Maj. Op. at [25] . As I read the Eighth Circuit opinion, however, the court carefully sifted the facts--facts substantially identical to those in the present case--in concluding that the rejection of the Missouri club was based on viewpoint, not content. See Good News/Good Sports Club , 28 F.3d at 1505-07 & nn.7-9.

I cannot square the majority's analysis in this case with Lamb's Chapel v. Center Moriches Union Free School District . In Lamb's Chapel , the Supreme Court held that a school district violated the Free Speech Clause of the First Amendment when it refused to allow its auditorium to be used by a church for the showing of a film series that presented family issues from a Christian perspective. See Lamb's Chapel , 508 U.S. at 390 -95, 113 S. Ct. at 2146-48. The school district's action denied church members the right to speak from their own perspective (Christian) on a topic (family issues) that would otherwise have been accommodated in the forum. See id. at 394, 113 S. Ct. at 2147 ("The film series involved here no doubt dealt with a subject otherwise permissible . . . and its exhibition was denied solely because the series dealt with the subject from a religious

standpoint.").

The majority asserts that the present case is controlled by our opinion in Full Gospel Tabernacle v. Community Sch. Dist. 27 , 164 F.3d 829 (2d Cir. 1999) ("We affirm for substantially the reasons stated by Judge Haight in the decision below."), aff'g 979 F. Supp. 214 (S.D.N.Y. 1997), in which case a church sought to use school facilities for its church-wide "worship services." 979 F. Supp. 216. But this case seems to me to be much closer to Lamb's Chapel than to Full Gospel Tabernacle . The majority here would distinguish the message of the Club from the message of the church in Lamb's Chapel -- and from the message of the scout groups in this case--on the ground that the message of the Good News Club has an "additional layer" beyond simply teaching "secular values such as obedience or resisting jealousy." Maj. Op. at [20] . This "additional layer" is the Club's insistence that "these morals or these values are senseless without Christ." Id. This distinction lacks traction, because Christ is also the central and animating spirit in the viewpoint expressed in the Lamb's Chapel films. Thus in one film, a spokesman on family life warns that the modern family is sliding away from spirituality and toward humanism, and that this slide "can only be counterbalanced by a loving home where Christian values are instilled from an early age." Lamb's Chapel v. Center Moriches Union Free Sch. Dist. , 959 F.2d 381, 384 (2d Cir. 1992). I see no basis for saying that the message of the Good News Club has religious content and that the message of the movie is no more than a religious viewpoint on a secular subject.

The distinction between content discrimination and viewpoint discrimination is elusive and subtle. "Viewpoint discrimination is . . . an egregious form of content discrimination." Rosenberger , 515 U.S. at 829 , 115 S. Ct. at 2516. "[D]iscrimination against one set of views or ideas is but a subset or particular instance of the more general phenomenon of content discrimination. And, it must be acknowledged, the distinction is not a precise one." Id. at 830-31, 115 S. Ct. at 2517 (internal citation omitted). The distinction is especially slippery where the viewpoint in question is religious, in part because the sectarian religious perspective will tend to look to the deity for answers to moral questions. The idea that moral values take their shape and force from God seems to me to be a viewpoint for the consideration of moral questions. True, religious answers to questions about morals and character tend to be couched in overtly religious terms and to implicate religious devotions, but that is because the sectarian viewpoint is an expression of religious insight, confidence or faith--not because the religious viewpoint is a change of subject:

It is, in a sense, something of an understatement to speak of religious thought and discussion as just a viewpoint, as distinct from a comprehensive body of thought. . . . Religion may be a vast area of inquiry, but it also provides . . . a specific premise, a perspective, a standpoint from which a variety of subjects may be discussed and considered.

Id. at 831, 115 S. Ct. at 2517 (emphasis added).

Although the religious viewpoint thus has the tendency to overwhelm the secularity of a subject matter, this transformative, goal- directed tendency of religious viewpoints does not justify a preference for other viewpoints.

Here, the subject matter is morals and character. The majority focuses on the evident fact that the Club's moral vision entails religious activity, and concludes that this makes the subject matter religious: "Each of these organizations [ i.e. , those granted access] focuses on the development of youth in various ways; however, the record includes nothing to indicate that any of these clubs' activities remotely approach the type of religious instruction and prayer provided by the Club." Maj. Op. at [24] . Perhaps not. But that observation begs the question: Does the "religious instruction and prayer provided by the Club" reflect and express this Club's viewpoint on morals and character? The subject matter (morals and character) is "secular" in the sense that it is often informed by secular perspectives; but the subject matter does not change when it is informed by viewpoints that are sectarian.

The Fourniers argue that presentation of Christian morality entails religious activities such as prayer, that their (religious) viewpoint on the "secular" topic of morality cannot be expressed and promoted without these religious activities, and that forcing them to do so would prevent them from expressing their point of view, in violation of the First Amendment.

As the Eighth Circuit emphasized, the Supreme Court has "refused to cabin religious speech into a separate excludible speech category; rather, the Court [has] adopted a more expansive view, recognizing that a religious perspective can constitute a separate viewpoint on a wide variety of seemingly secular subject matter." Good News/Good Sports Club , 28 F.3d at 1506-07. This insight has particular force where the "seemingly secular subject matter" is morals and character. No one should be surprised if a religious viewpoint on morality looks very like religion itself.

The school district allows use of its facilities by certain groups that focus on "moral development" of young people. The majority argues that the activities of the Club are "quintessentially religious," while the other groups deal only with the "secular subject of morality." Maj. Op. at [21] . The fallacy of this distinction is that it treats morality as a subject that is secular by nature, which of course it may be or not, depending on one's point of view. Discussion of morals and character from purely secular viewpoints of idealism, culture or general uplift will often appear secular, while discussion of the same issues from a religious viewpoint will often appear essentially--quintessentially--religious. "There is no indication when `singing hymns, reading scripture, and teaching biblical principles' cease to be `singing, teaching, and reading'--all apparently forms of `speech,' despite their religious subject matter--and become unprotected `worship.'" Widmar v. Vincent , 454 U.S. 263, 269 n.6, 102 S. Ct. 269, 274 n.6 (1981) (internal citation omitted). Because the Club's focus appears to be on teaching lessons for the living of a morally fit life, and not on worship, I believe that the Club's message is in fact the "teach[ing of] morals from a religious perspective," Maj. Op. at [15] .

Even if one could not say whether the Club's message conveyed religious content or religious viewpoints on otherwise-permissible content, we should err on the side of free speech. The concerns supporting free speech greatly outweigh those supporting regulation of the limited public forum.

Whenever public officials, in executing the school's access policy, evaluate private speech "to discern [its] underlying philosophic assumptions respecting religious theory and belief," the result is "a denial of the right of free speech." Rosenberger , 515 U.S. at 845 , 115 S. Ct. at 2525. I would reverse the judgment of the District Court.