GOOD NEWS CLUB v. MILFORD CENTRAL SCHOOL

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GOOD NEWS CLUB v. MILFORD CENTRAL SCHOOL ( No. 99-2036 )
202 F. 3d 502, reversed and remanded.

GOOD NEWS CLUB et al. <font i="1">v. MILFORD CENTRAL SCHOOL

certiorari to the united states court of appeals for the second circuit


No. 99–2036. Argued February 28, 2001—Decided June 11, 2001

Under New York law, respondent Milford Central School (Milford) enacted a policy authorizing district residents to use its building after school for, among other things, (1) instruction in education, learning, or the arts and (2) social, civic, recreational, and entertainment uses pertaining to the community welfare. Stephen and Darleen Fournier, district residents eligible to use the school’s facilities upon approval of their proposed use, are sponsors of the Good News Club, a private Christian organization for children ages 6 to 12. Pursuant to Milford’s policy, they submitted a request to hold the Club’s weekly afterschool meetings in the school. Milford denied the request on the ground that the proposed use—to sing songs, hear Bible lessons, memorize scripture, and pray—was the equivalent of religious worship prohibited by the community use policy. Petitioners (collectively, the Club), filed suit under 42 U. S. C. §1983, alleging, inter alia , that the denial of the Club’s application violated its free speech rights under the First and Fourteenth Amendments. The District Court ultimately granted Milford summary judgment, finding the Club’s subject matter to be religious in nature, not merely a discussion of secular matters from a religious perspective that Milford otherwise permits. Because the school had not allowed other groups providing religious instruction to use its limited public forum, the court held that it could deny the Club access without engaging in unconstitutional viewpoint discrimination. In affirming, the Second Circuit rejected the Club’s contention that Milford’s restriction was unreasonable, and held that, because the Club’s subject matter was quintessentially religious and its activities fell outside the bounds of pure moral and character development, Milford’s policy was constitutional subject discrimination, not unconstitutional viewpoint discrimination.

Held:

1. Milford violated the Club’s free speech rights when it excluded the Club from meeting after hours at the school. Pp. 5–11.

(a) Because the parties so agree, this Court assumes that Milford operates a limited public forum. A State establishing such a forum is not required to and does not allow persons to engage in every type of speech. It may be justified in reserving its forum for certain groups or the discussion of certain topics. E.g., Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819. The power to so restrict speech, however, is not without limits. The restriction must not discriminate against speech based on viewpoint, ibid., and must be reasonable in light of the forum’s purpose, Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U. S. 788. Pp. 5–6.

(b) By denying the Club access to the school’s limited public forum on the ground that the Club was religious in nature, Milford discriminated against the Club because of its religious viewpoint in violation of the Free Speech Clause. That exclusion is indistinguishable from the exclusions held violative of the Clause in Lamb’s Chapel v. Center Moriches Union Free School Dist., 508 U. S. 384, where a school district precluded a private group from presenting films at the school based solely on the religious perspective of the films, and in Rosenberger, where a university refused to fund a student publication because it addressed issues from a religious perspective. The only apparent difference between the activities of Lamb’s Chapel and the Club is the inconsequential distinction that the Club teaches moral lessons from a Christian perspective through live storytelling and prayer, whereas Lamb’s Chapel taught lessons through films. Rosenberger also is dispositive: Given the obvious religious content of the publication there at issue, it cannot be said that the Club’s activities are any more “religious” or deserve any less Free Speech Clause protection. This Court disagrees with the Second Circuit’s view that something that is quintessentially religious or decidedly religious in nature cannot also be characterized properly as the teaching of morals and character development from a particular viewpoint. What matters for Free Speech Clause purposes is that there is no logical difference in kind between the invocation of Christianity by the Club and the invocation of teamwork, loyalty, or patriotism by other associations to provide a foundation for their lessons. Because Milford’s restriction is viewpoint discriminatory, the Court need not decide whether it is unreasonable in light of the forum’s purposes. Pp. 6–11.

2. Permitting the Club to meet on the school’s premises would not have violated the Establishment Clause. Establishment Clause defenses similar to Milford’s were rejected in Lamb’s Chapel, supra, at 395—where the Court found that, because the films would not have been shown during school hours, would not have been sponsored by the school, and would have been open to the public, not just to church members, there was no realistic danger that the community would think that the district was endorsing religion—and in Widmar v. Vincent, 454 U. S. 263, and n. 13—where a university’s forum was already available to other groups. Because the Club’s activities are materially indistinguishable from those in Lamb’s Chapel and Widmar, Milford’s reliance on the Establishment Clause is unavailing. As in Lamb’s Chapel, the Club’s meetings were to be held after school hours, not sponsored by the school, and open to any student who obtained parental consent, not just to Club members. As in Widmar, Milford made its forum available to other organizations. The Court rejects Milford’s attempt to distinguish those cases by emphasizing that its policy involves elementary school children who will perceive that the school is endorsing the Club and will feel coerced to participate because the Club’s activities take place on school grounds, even though they occur during nonschool hours. That argument is unpersuasive for a number of reasons. (1) Allowing the Club to speak on school grounds would ensure, not threaten, neutrality toward religion. Accordingly, Milford faces an uphill battle in arguing that the Establishment Clause compels it to exclude the Club. See, e.g., Rosenberger, supra , at 839. (2) To the extent the Court considers whether the community would feel coercive pressure to engage in the Club’s activities, cf. Lee v. Weisman, 505 U. S. 577, the relevant community is the parents who choose whether their children will attend Club meetings, not the children themselves. (3) Whatever significance it may have assigned in the Establishment Clause context to the suggestion that elementary school children are more impressionable than adults, cf., e.g., id. , at 592, the Court has never foreclosed private religious conduct during nonschool hours merely because it takes place on school premises where elementary school children may be present. Lee, supra , at 592, and Edwards v. Aguillard , 482 U. S. 578, distinguished. (4) Even if the Court were to consider the possible misperceptions by schoolchildren in deciding whether there is an Establishment Clause violation, the facts of this case simply do not support Milford’s conclusion. Finally, it cannot be said that the danger that children would misperceive the endorsement of religion is any greater than the danger that they would perceive a hostility toward the religious viewpoint if the Club were excluded from the public forum. Because it is not convinced that there is any significance to the possibility that elementary school children may witness the Club’s activities on school premises, the Court can find no reason to depart from Lamb’s Chapel and Widmar . Pp. 12–20.

3. Because Milford has not raised a valid Establishment Clause claim, this Court does not address whether such a claim could excuse Milford’s viewpoint discrimination. Pp. 12, 20.

202 F. 3d 502, reversed and remanded.

Thomas, J., delivered the opinion of the Court, in which Rehnquist, C. J., and O’Connor, Scalia, and Kennedy, JJ., joined, and in which Breyer, JJ., joined in part. Scalia, J., filed a concurring opinion. Breyer, J., filed an opinion concurring in part. Stevens, J., filed a dissenting opinion. Souter, J., filed a dissenting opinion, in which Ginsburg, J., joined.


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Concurrence

GOOD NEWS CLUB, et al. , PETITIONERS v. MILFORD CENTRAL SCHOOL

on writ of certiorari to the united states court of appeals for the second circuit


[June 11, 2001]

Justice Scalia , concurring.

I join the Court’s opinion but write separately to explain further my views on two issues.

I

First, I join Part IV of the Court’s opinion, regarding the Establishment Clause issue, with the understanding that its consideration of coercive pressure, see ante, at 14, and perceptions of endorsement, see ante, at 14–15, 17–18, “to the extent” that the law makes such factors relevant, is consistent with the belief (which I hold) that in this case that extent is zero. As to coercive pressure: Physical coercion is not at issue here; and so-called “peer pressure,” if it can even been considered coercion, is, when it arises from private activities, one of the attendant consequences of a freedom of association that is constitutionally protected, see, e.g., Roberts v. United States Jaycees, 468 U. S. 609, 622 (1984) ; NAACP v. Alabama ex rel. Patterson, 357 U. S. 449, 460–461 (1958) . What is at play here is not coercion, but the compulsion of ideas—and the private right to exert and receive that compulsion (or to have one’s children receive it) is protected by the Free Speech and Free Exercise Clauses, see, e.g., Heffron v. International Soc. for Krishna Consciousness, Inc., 452 U. S. 640, 647 (1981) ; Murdock v. Pennsylvania, 319 U. S. 105, 108–109 (1943) ; Cantwell v. Connecticut, 310 U. S. 296, 307–310 (1940) , not banned by the Establishment Clause. A priest has as much liberty to proselytize as a patriot.

As to endorsement, I have previously written that “[r]eligious expression cannot violate the Establishment Clause where it (1) is purely private and (2) occurs in a traditional or designated public forum, publicly announced and open to all on equal terms.” Capitol Square Review and Advisory Bd. v. Pinette, 515 U. S. 753, 770 (1995) . The same is true of private speech that occurs in a limited public forum, publicly announced, whose boundaries are not drawn to favor religious groups but instead permit a cross-section of uses. In that context, which is this case, “erroneous conclusions [about endorsement] do not count.” Id., at 765. See also Lamb’s Chapel v. Center Moriches Union Free School Dist., 508 U. S. 384, 401 (1993) ( Scalia, J., concurring in judgment) (“I would hold, simply and clearly, that giving [a private religious group] nondiscriminatory access to school facilities cannot violate [the Establishment Clause] because it does not signify state or local embrace of a particular religious sect”).

II

Second, since we have rejected the only reason that respondent gave for excluding the Club’s speech from a forum that clearly included it (the forum was opened to any “us[e] pertaining to the welfare of the community,” App. to Pet. for Cert. D1), I do not suppose it matters whether the exclusion is characterized as viewpoint or subject-matter discrimination. Lacking any legitimate reason for excluding the Club’s speech from its forum—“because it’s religious” will not do, see, e.g., Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 532–533, 546 (1993) ; Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872, 877–878 (1990) —respondent would seem to fail First Amendment scrutiny regardless of how its action is characterized. Even subject-matter limits must at least be “reasonable in light of the purpose served by the forum,” Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U. S. 788, 806 (1985) . 1 But I agree, in any event, that respondent did discriminate on the basis of viewpoint.

As I understand it, the point of disagreement between the Court and the dissenters (and the Court of Appeals) with regard to petitioner’s Free Speech Clause claim is not whether the Good News Club must be permitted to present religious viewpoints on morals and character in respondent’s forum, which has been opened to secular discussions of that subject, see ante, at 7–8. 2 The answer to that is established by our decision in Lamb’s Chapel, supra. The point of disagreement is not even whether some of the Club’s religious speech fell within the protection of Lamb’s Chapel . It certainly did. See ante, at 8; 202 F. 3d 502, 509 (CA2 2000) (the Club’s “teachings may involve secular values such as obedience or resisting jealousy”).

The disagreement, rather, regards the portions of the Club’s meetings that are not “purely” “discussions” of morality and character from a religious viewpoint. The Club, for example, urges children “who already believe in the Lord Jesus as their Savior” to “[s]top and ask God for the strength and the ‘want’ … to obey Him,” 21 F. Supp.2d 147, 156 (NDNY 1998) (internal quotation marks omitted), and it invites children who “don’t know Jesus as Savior” to “trust the Lord Jesus to be [their] Savior from sin,” ibid. The dissenters and the Second Circuit say that the presence of such additional speech, because it is purely religious, transforms the Club’s meetings into something different in kind from other, nonreligious activities that teach moral and character development. See post, at 4–5 ( Stevens , J., dissenting); post, at 4–5 ( Souter , J., dissenting); 202 F. 3d, at 509–511. Therefore, the argument goes, excluding the Club is not viewpoint discrimination. I disagree.

Respondent has opened its facilities to any “us[e] pertaining to the welfare of the community, provided that such us[e] shall be nonexclusive and shall be opened to the general public.” App. to Pet. for Cert. D1. Shaping the moral and character development of children certainly “pertain[s] to the welfare of the community.” Thus, respondent has agreed that groups engaged in the endeavor of developing character may use its forum. The Boy Scouts, for example, may seek “to influence a boy’s character, development and spiritual growth,” App. N10–N11; cf. Boy Scouts of America v. Dale, 530 U. S. 640, 649 (2000) (“[T]he general mission of the Boy Scouts is clear: ‘[t]o instill values in young people’ ” (quoting the Scouts’ mission statement)), and a group may use Aesop’s Fables to teach moral values, App. N11. When the Club attempted to teach Biblical-based moral values, however, it was excluded because its activities “d[id] not involve merely a religious perspective on the secular subject of morality” and because “it [was] clear from the conduct of the meetings that the Good News Club goes far beyond merely stating its viewpoint.” 202 F. 3d, at 510.

From no other group does respondent require the sterility of speech that it demands of petitioners. The Boy Scouts could undoubtedly buttress their exhortations to keep “morally straight” and live “clean” lives, see Boy Scouts of America v. Dale, supra, at 649, by giving reasons why that is a good idea—because parents want and expect it, because it will make the scouts “better” and “more successful” people, because it will emulate such admired past Scouts as former President Gerald Ford. The Club, however, may only discuss morals and character, and cannot give its reasons why they should be fostered—because God wants and expects it, because it will make the Club members “saintly” people, and because it emulates Jesus Christ. The Club may not, in other words, independently discuss the religious premise on which its views are based—that God exists and His assistance is necessary to morality. It may not defend the premise, and it absolutely must not seek to persuade the children that the premise is true. The children must, so to say, take it on faith. This is blatant viewpoint discrimination. Just as calls to character based on patriotism will go unanswered if the listeners do not believe their country is good and just, calls to moral behavior based on God’s will are useless if the listeners do not believe that God exists. Effectiveness in presenting a viewpoint rests on the persuasiveness with which the speaker defends his premise—and in respondent’s facilities every premise but a religious one may be defended.

In Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819 (1995) , we struck down a similar viewpoint restriction. There, a private student newspaper sought funding from a student-activity fund on the same basis as its secular counterparts. And though the paper printed such directly religious material as exhortations to belief, see id., at 826 (quoting the paper’s self-described mission “ ‘to encourage students to consider what a personal relationship with Jesus Christ means’ ”); id., at 865 ( Souter, J., dissenting) (“ ‘The only way to salvation through Him is by confessing and repenting of sin. It is the Christian’s duty to make sinners aware of their need for salvation’ ” (quoting the paper)); see also id., at 865–867 (quoting other examples), we held that refusing to provide the funds discriminated on the basis of viewpoint, because the religious speech had been used to “provid[e] … a specific premise … from which a variety of subjects may be discussed and considered,” id., at 831 (opinion of the Court). The right to present a viewpoint based on a religion premise carried with it the right to defend the premise.

The dissenters emphasize that the religious speech used by the Club as the foundation for its views on morals and character is not just any type of religious speech—although they cannot agree exactly what type of religious speech it is. In Justice Stevens ’ view, it is speech “aimed principally at proselytizing or inculcating belief in a particular religious faith,” post, at 1; see also post, at 5, n. 3. This does not, to begin with, distinguish Rosenberger, which also involved proselytizing speech, as the above quotations show. See also Rosenberger, supra, at 844 (referring approvingly to the dissent’s description of the paper as a “wor[k] characterized by … evangelism”). But in addition, it does not distinguish the Club’s activities from those of the other groups using respondent’s forum—which have not, as Justice Stevens suggests, see post, at 2–3, been restricted to roundtable “discussions” of moral issues. Those groups may seek to inculcate children with their beliefs, and they may furthermore “recruit others to join their respective groups,” post, at 3. The Club must therefore have liberty to do the same, even if, as Justice Stevens fears without support in the record, see post, at 3, its actions may prove (shudder!) divisive. See Lamb’s Chapel, 508 U. S., at 395 (remarking that worries about “public unrest” caused by “proselytizing” are “difficult to defend as a reason to deny the presentation of a religious point of view”); cf. Lynch v. Donnelly, 465 U. S. 668, 684–685 (1984) (holding that “political divisiveness” could not invalidate inclusion of crche in municipal Christmas display); Cantwell v. Connecticut, 310 U. S., at 310–311.

Justice Souter , while agreeing that the Club’s religious speech “may be characterized as proselytizing,” post, at 5, n. 3, thinks that it is even more clearly excludable from respondent’s forum because it is essentially “an evangelical service of worship,” post, at 5. But we have previously rejected the attempt to distinguish worship from other religious speech, saying that “the distinction has [no] intelligible content,” and further, no “ relevance ” to the constitutional issue. Widmar v. Vincent, 454 U. S. 263, n. 6 (1981); see also Murdock v. Pennsylvania, 319 U. S., at 109 (refusing to distinguish evangelism from worship). 3 Those holdings are surely proved correct today by the dissenters’ inability to agree, even between themselves, into which subcategory of religious speech the Club’s activities fell. If the distinction did have content, it would be beyond the courts’ competence to administer. Widmar v. Vincent, supra, at 269, n. 6; cf. Lee v. Weisman, 505 U. S. 577, 616–617 (1992) ( Souter , J., concurring) (“I can hardly imagine a subject less amenable to the competence of the federal judiciary, or more deliberately to be avoided where possible,” than “comparative theology”). And if courts (and other government officials) were competent, applying the distinction would require state monitoring of private, religious speech with a degree of pervasiveness that we have previously found unacceptable. See, e.g., Rosenberger v. Rector and Visitors of Univ. of Va., supra, at 844–845; Widmar v. Vincent, supra, at 269, n. 6. I will not endorse an approach that suffers such a wondrous diversity of flaws.

* * *

With these words of explanation, I join the opinion of the Court.


Notes

1 In this regard, I should note the inaccuracy of the Justice Souter’s claim that the reasonableness of the forum limitation is not properly before us, see post, at 2–3, and n. 1 (dissenting opinion). Petitioners argued, both in their papers filed in the District Court, Memorandum of Law in Support of Cross-Motion for Summary Judgment in No. 97-CV-0302 (NDNY), pp. 20–22, and in their brief filed on appeal, Brief for Appellants in No. 98–9494 (CA2), pp. 33–35, that respondent’s exclusion of them from the forum was unreasonable in light of the purposes served by the forum. Although the District Court did say in passing that the reasonableness of respondent’s general restriction on use of its facilities for religious purposes was not challenged, see 21 F. Supp.2d 147, 154 (NDNY 1998), the Court of Appeals apparently decided that the particular reasonableness challenge brought by petitioners had been preserved, because it addressed the argument on the merits, see 202 F. 3d 502, 509 (CA2 2000) (“Taking first the reasonableness criterion, the Club argues that the restriction is unreasonable … . This argument is foreclosed by precedent”).

2 Neither does the disagreement center on the mode of the Club’s speech—the fact that it sings songs and plays games. Although a forum could perhaps be opened to lectures but not plays, debates but not concerts, respondent has placed no such restrictions on the use of its facilities. See App. N8, N14, N19 (allowing seminars, concerts, and plays).

3 We have drawn a different distinction—between religious speech generally and speech about religion—but only with regard to restrictions the State must place on its own speech, where pervasive state monitoring is unproblematic. See School Dist. of Abington Township v. Schempp, 374 U. S. 203, 225 (1963) (State schools in their official capacity may not teach religion but may teach about religion). Whatever the rule there, licensing and monitoring private religious speech is an entirely different matter, see, e.g., Kunz v. New York, 340 U. S. 290, 293–294 (1951) , even in a limited public forum where the state has some authority to draw subject-matter distinctions.


TOP

Concurrence

GOOD NEWS CLUB, et al. , PETITIONERS v. MILFORD CENTRAL SCHOOL

on writ of certiorari to the united states court of appeals for the second circuit


[June 11, 2001]

Justice Scalia , concurring.

I join the Court’s opinion but write separately to explain further my views on two issues.

I

First, I join Part IV of the Court’s opinion, regarding the Establishment Clause issue, with the understanding that its consideration of coercive pressure, see ante, at 14, and perceptions of endorsement, see ante, at 14–15, 17–18, “to the extent” that the law makes such factors relevant, is consistent with the belief (which I hold) that in this case that extent is zero. As to coercive pressure: Physical coercion is not at issue here; and so-called “peer pressure,” if it can even been considered coercion, is, when it arises from private activities, one of the attendant consequences of a freedom of association that is constitutionally protected, see, e.g., Roberts v. United States Jaycees, 468 U. S. 609, 622 (1984) ; NAACP v. Alabama ex rel. Patterson, 357 U. S. 449, 460–461 (1958) . What is at play here is not coercion, but the compulsion of ideas—and the private right to exert and receive that compulsion (or to have one’s children receive it) is protected by the Free Speech and Free Exercise Clauses, see, e.g., Heffron v. International Soc. for Krishna Consciousness, Inc., 452 U. S. 640, 647 (1981) ; Murdock v. Pennsylvania, 319 U. S. 105, 108–109 (1943) ; Cantwell v. Connecticut, 310 U. S. 296, 307–310 (1940) , not banned by the Establishment Clause. A priest has as much liberty to proselytize as a patriot.

As to endorsement, I have previously written that “[r]eligious expression cannot violate the Establishment Clause where it (1) is purely private and (2) occurs in a traditional or designated public forum, publicly announced and open to all on equal terms.” Capitol Square Review and Advisory Bd. v. Pinette, 515 U. S. 753, 770 (1995) . The same is true of private speech that occurs in a limited public forum, publicly announced, whose boundaries are not drawn to favor religious groups but instead permit a cross-section of uses. In that context, which is this case, “erroneous conclusions [about endorsement] do not count.” Id., at 765. See also Lamb’s Chapel v. Center Moriches Union Free School Dist., 508 U. S. 384, 401 (1993) ( Scalia, J., concurring in judgment) (“I would hold, simply and clearly, that giving [a private religious group] nondiscriminatory access to school facilities cannot violate [the Establishment Clause] because it does not signify state or local embrace of a particular religious sect”).

II

Second, since we have rejected the only reason that respondent gave for excluding the Club’s speech from a forum that clearly included it (the forum was opened to any “us[e] pertaining to the welfare of the community,” App. to Pet. for Cert. D1), I do not suppose it matters whether the exclusion is characterized as viewpoint or subject-matter discrimination. Lacking any legitimate reason for excluding the Club’s speech from its forum—“because it’s religious” will not do, see, e.g., Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 532–533, 546 (1993) ; Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872, 877–878 (1990) —respondent would seem to fail First Amendment scrutiny regardless of how its action is characterized. Even subject-matter limits must at least be “reasonable in light of the purpose served by the forum,” Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U. S. 788, 806 (1985) . 1 But I agree, in any event, that respondent did discriminate on the basis of viewpoint.

As I understand it, the point of disagreement between the Court and the dissenters (and the Court of Appeals) with regard to petitioner’s Free Speech Clause claim is not whether the Good News Club must be permitted to present religious viewpoints on morals and character in respondent’s forum, which has been opened to secular discussions of that subject, see ante, at 7–8. 2 The answer to that is established by our decision in Lamb’s Chapel, supra. The point of disagreement is not even whether some of the Club’s religious speech fell within the protection of Lamb’s Chapel . It certainly did. See ante, at 8; 202 F. 3d 502, 509 (CA2 2000) (the Club’s “teachings may involve secular values such as obedience or resisting jealousy”).

The disagreement, rather, regards the portions of the Club’s meetings that are not “purely” “discussions” of morality and character from a religious viewpoint. The Club, for example, urges children “who already believe in the Lord Jesus as their Savior” to “[s]top and ask God for the strength and the ‘want’ … to obey Him,” 21 F. Supp.2d 147, 156 (NDNY 1998) (internal quotation marks omitted), and it invites children who “don’t know Jesus as Savior” to “trust the Lord Jesus to be [their] Savior from sin,” ibid. The dissenters and the Second Circuit say that the presence of such additional speech, because it is purely religious, transforms the Club’s meetings into something different in kind from other, nonreligious activities that teach moral and character development. See post, at 4–5 ( Stevens , J., dissenting); post, at 4–5 ( Souter , J., dissenting); 202 F. 3d, at 509–511. Therefore, the argument goes, excluding the Club is not viewpoint discrimination. I disagree.

Respondent has opened its facilities to any “us[e] pertaining to the welfare of the community, provided that such us[e] shall be nonexclusive and shall be opened to the general public.” App. to Pet. for Cert. D1. Shaping the moral and character development of children certainly “pertain[s] to the welfare of the community.” Thus, respondent has agreed that groups engaged in the endeavor of developing character may use its forum. The Boy Scouts, for example, may seek “to influence a boy’s character, development and spiritual growth,” App. N10–N11; cf. Boy Scouts of America v. Dale, 530 U. S. 640, 649 (2000) (“[T]he general mission of the Boy Scouts is clear: ‘[t]o instill values in young people’ ” (quoting the Scouts’ mission statement)), and a group may use Aesop’s Fables to teach moral values, App. N11. When the Club attempted to teach Biblical-based moral values, however, it was excluded because its activities “d[id] not involve merely a religious perspective on the secular subject of morality” and because “it [was] clear from the conduct of the meetings that the Good News Club goes far beyond merely stating its viewpoint.” 202 F. 3d, at 510.

From no other group does respondent require the sterility of speech that it demands of petitioners. The Boy Scouts could undoubtedly buttress their exhortations to keep “morally straight” and live “clean” lives, see Boy Scouts of America v. Dale, supra, at 649, by giving reasons why that is a good idea—because parents want and expect it, because it will make the scouts “better” and “more successful” people, because it will emulate such admired past Scouts as former President Gerald Ford. The Club, however, may only discuss morals and character, and cannot give its reasons why they should be fostered—because God wants and expects it, because it will make the Club members “saintly” people, and because it emulates Jesus Christ. The Club may not, in other words, independently discuss the religious premise on which its views are based—that God exists and His assistance is necessary to morality. It may not defend the premise, and it absolutely must not seek to persuade the children that the premise is true. The children must, so to say, take it on faith. This is blatant viewpoint discrimination. Just as calls to character based on patriotism will go unanswered if the listeners do not believe their country is good and just, calls to moral behavior based on God’s will are useless if the listeners do not believe that God exists. Effectiveness in presenting a viewpoint rests on the persuasiveness with which the speaker defends his premise—and in respondent’s facilities every premise but a religious one may be defended.

In Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819 (1995) , we struck down a similar viewpoint restriction. There, a private student newspaper sought funding from a student-activity fund on the same basis as its secular counterparts. And though the paper printed such directly religious material as exhortations to belief, see id., at 826 (quoting the paper’s self-described mission “ ‘to encourage students to consider what a personal relationship with Jesus Christ means’ ”); id., at 865 ( Souter, J., dissenting) (“ ‘The only way to salvation through Him is by confessing and repenting of sin. It is the Christian’s duty to make sinners aware of their need for salvation’ ” (quoting the paper)); see also id., at 865–867 (quoting other examples), we held that refusing to provide the funds discriminated on the basis of viewpoint, because the religious speech had been used to “provid[e] … a specific premise … from which a variety of subjects may be discussed and considered,” id., at 831 (opinion of the Court). The right to present a viewpoint based on a religion premise carried with it the right to defend the premise.

The dissenters emphasize that the religious speech used by the Club as the foundation for its views on morals and character is not just any type of religious speech—although they cannot agree exactly what type of religious speech it is. In Justice Stevens ’ view, it is speech “aimed principally at proselytizing or inculcating belief in a particular religious faith,” post, at 1; see also post, at 5, n. 3. This does not, to begin with, distinguish Rosenberger, which also involved proselytizing speech, as the above quotations show. See also Rosenberger, supra, at 844 (referring approvingly to the dissent’s description of the paper as a “wor[k] characterized by … evangelism”). But in addition, it does not distinguish the Club’s activities from those of the other groups using respondent’s forum—which have not, as Justice Stevens suggests, see post, at 2–3, been restricted to roundtable “discussions” of moral issues. Those groups may seek to inculcate children with their beliefs, and they may furthermore “recruit others to join their respective groups,” post, at 3. The Club must therefore have liberty to do the same, even if, as Justice Stevens fears without support in the record, see post, at 3, its actions may prove (shudder!) divisive. See Lamb’s Chapel, 508 U. S., at 395 (remarking that worries about “public unrest” caused by “proselytizing” are “difficult to defend as a reason to deny the presentation of a religious point of view”); cf. Lynch v. Donnelly, 465 U. S. 668, 684–685 (1984) (holding that “political divisiveness” could not invalidate inclusion of crche in municipal Christmas display); Cantwell v. Connecticut, 310 U. S., at 310–311.

Justice Souter , while agreeing that the Club’s religious speech “may be characterized as proselytizing,” post, at 5, n. 3, thinks that it is even more clearly excludable from respondent’s forum because it is essentially “an evangelical service of worship,” post, at 5. But we have previously rejected the attempt to distinguish worship from other religious speech, saying that “the distinction has [no] intelligible content,” and further, no “ relevance ” to the constitutional issue. Widmar v. Vincent, 454 U. S. 263, n. 6 (1981); see also Murdock v. Pennsylvania, 319 U. S., at 109 (refusing to distinguish evangelism from worship). 3 Those holdings are surely proved correct today by the dissenters’ inability to agree, even between themselves, into which subcategory of religious speech the Club’s activities fell. If the distinction did have content, it would be beyond the courts’ competence to administer. Widmar v. Vincent, supra, at 269, n. 6; cf. Lee v. Weisman, 505 U. S. 577, 616–617 (1992) ( Souter , J., concurring) (“I can hardly imagine a subject less amenable to the competence of the federal judiciary, or more deliberately to be avoided where possible,” than “comparative theology”). And if courts (and other government officials) were competent, applying the distinction would require state monitoring of private, religious speech with a degree of pervasiveness that we have previously found unacceptable. See, e.g., Rosenberger v. Rector and Visitors of Univ. of Va., supra, at 844–845; Widmar v. Vincent, supra, at 269, n. 6. I will not endorse an approach that suffers such a wondrous diversity of flaws.

* * *

With these words of explanation, I join the opinion of the Court.


Notes

1 In this regard, I should note the inaccuracy of the Justice Souter’s claim that the reasonableness of the forum limitation is not properly before us, see post, at 2–3, and n. 1 (dissenting opinion). Petitioners argued, both in their papers filed in the District Court, Memorandum of Law in Support of Cross-Motion for Summary Judgment in No. 97-CV-0302 (NDNY), pp. 20–22, and in their brief filed on appeal, Brief for Appellants in No. 98–9494 (CA2), pp. 33–35, that respondent’s exclusion of them from the forum was unreasonable in light of the purposes served by the forum. Although the District Court did say in passing that the reasonableness of respondent’s general restriction on use of its facilities for religious purposes was not challenged, see 21 F. Supp.2d 147, 154 (NDNY 1998), the Court of Appeals apparently decided that the particular reasonableness challenge brought by petitioners had been preserved, because it addressed the argument on the merits, see 202 F. 3d 502, 509 (CA2 2000) (“Taking first the reasonableness criterion, the Club argues that the restriction is unreasonable … . This argument is foreclosed by precedent”).

2 Neither does the disagreement center on the mode of the Club’s speech—the fact that it sings songs and plays games. Although a forum could perhaps be opened to lectures but not plays, debates but not concerts, respondent has placed no such restrictions on the use of its facilities. See App. N8, N14, N19 (allowing seminars, concerts, and plays).

3 We have drawn a different distinction—between religious speech generally and speech about religion—but only with regard to restrictions the State must place on its own speech, where pervasive state monitoring is unproblematic. See School Dist. of Abington Township v. Schempp, 374 U. S. 203, 225 (1963) (State schools in their official capacity may not teach religion but may teach about religion). Whatever the rule there, licensing and monitoring private religious speech is an entirely different matter, see, e.g., Kunz v. New York, 340 U. S. 290, 293–294 (1951) , even in a limited public forum where the state has some authority to draw subject-matter distinctions.


TOP

Concurrence

GOOD NEWS CLUB, et al. , PETITIONERS v. MILFORD CENTRAL SCHOOL

on writ of certiorari to the united states court of appeals for the second circuit


[June 11, 2001]

Justice Scalia , concurring.

I join the Court’s opinion but write separately to explain further my views on two issues.

I

First, I join Part IV of the Court’s opinion, regarding the Establishment Clause issue, with the understanding that its consideration of coercive pressure, see ante, at 14, and perceptions of endorsement, see ante, at 14–15, 17–18, “to the extent” that the law makes such factors relevant, is consistent with the belief (which I hold) that in this case that extent is zero. As to coercive pressure: Physical coercion is not at issue here; and so-called “peer pressure,” if it can even been considered coercion, is, when it arises from private activities, one of the attendant consequences of a freedom of association that is constitutionally protected, see, e.g., Roberts v. United States Jaycees, 468 U. S. 609, 622 (1984) ; NAACP v. Alabama ex rel. Patterson, 357 U. S. 449, 460–461 (1958) . What is at play here is not coercion, but the compulsion of ideas—and the private right to exert and receive that compulsion (or to have one’s children receive it) is protected by the Free Speech and Free Exercise Clauses, see, e.g., Heffron v. International Soc. for Krishna Consciousness, Inc., 452 U. S. 640, 647 (1981) ; Murdock v. Pennsylvania, 319 U. S. 105, 108–109 (1943) ; Cantwell v. Connecticut, 310 U. S. 296, 307–310 (1940) , not banned by the Establishment Clause. A priest has as much liberty to proselytize as a patriot.

As to endorsement, I have previously written that “[r]eligious expression cannot violate the Establishment Clause where it (1) is purely private and (2) occurs in a traditional or designated public forum, publicly announced and open to all on equal terms.” Capitol Square Review and Advisory Bd. v. Pinette, 515 U. S. 753, 770 (1995) . The same is true of private speech that occurs in a limited public forum, publicly announced, whose boundaries are not drawn to favor religious groups but instead permit a cross-section of uses. In that context, which is this case, “erroneous conclusions [about endorsement] do not count.” Id., at 765. See also Lamb’s Chapel v. Center Moriches Union Free School Dist., 508 U. S. 384, 401 (1993) ( Scalia, J., concurring in judgment) (“I would hold, simply and clearly, that giving [a private religious group] nondiscriminatory access to school facilities cannot violate [the Establishment Clause] because it does not signify state or local embrace of a particular religious sect”).

II

Second, since we have rejected the only reason that respondent gave for excluding the Club’s speech from a forum that clearly included it (the forum was opened to any “us[e] pertaining to the welfare of the community,” App. to Pet. for Cert. D1), I do not suppose it matters whether the exclusion is characterized as viewpoint or subject-matter discrimination. Lacking any legitimate reason for excluding the Club’s speech from its forum—“because it’s religious” will not do, see, e.g., Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 532–533, 546 (1993) ; Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872, 877–878 (1990) —respondent would seem to fail First Amendment scrutiny regardless of how its action is characterized. Even subject-matter limits must at least be “reasonable in light of the purpose served by the forum,” Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U. S. 788, 806 (1985) . 1 But I agree, in any event, that respondent did discriminate on the basis of viewpoint.

As I understand it, the point of disagreement between the Court and the dissenters (and the Court of Appeals) with regard to petitioner’s Free Speech Clause claim is not whether the Good News Club must be permitted to present religious viewpoints on morals and character in respondent’s forum, which has been opened to secular discussions of that subject, see ante, at 7–8. 2 The answer to that is established by our decision in Lamb’s Chapel, supra. The point of disagreement is not even whether some of the Club’s religious speech fell within the protection of Lamb’s Chapel . It certainly did. See ante, at 8; 202 F. 3d 502, 509 (CA2 2000) (the Club’s “teachings may involve secular values such as obedience or resisting jealousy”).

The disagreement, rather, regards the portions of the Club’s meetings that are not “purely” “discussions” of morality and character from a religious viewpoint. The Club, for example, urges children “who already believe in the Lord Jesus as their Savior” to “[s]top and ask God for the strength and the ‘want’ … to obey Him,” 21 F. Supp.2d 147, 156 (NDNY 1998) (internal quotation marks omitted), and it invites children who “don’t know Jesus as Savior” to “trust the Lord Jesus to be [their] Savior from sin,” ibid. The dissenters and the Second Circuit say that the presence of such additional speech, because it is purely religious, transforms the Club’s meetings into something different in kind from other, nonreligious activities that teach moral and character development. See post, at 4–5 ( Stevens , J., dissenting); post, at 4–5 ( Souter , J., dissenting); 202 F. 3d, at 509–511. Therefore, the argument goes, excluding the Club is not viewpoint discrimination. I disagree.

Respondent has opened its facilities to any “us[e] pertaining to the welfare of the community, provided that such us[e] shall be nonexclusive and shall be opened to the general public.” App. to Pet. for Cert. D1. Shaping the moral and character development of children certainly “pertain[s] to the welfare of the community.” Thus, respondent has agreed that groups engaged in the endeavor of developing character may use its forum. The Boy Scouts, for example, may seek “to influence a boy’s character, development and spiritual growth,” App. N10–N11; cf. Boy Scouts of America v. Dale, 530 U. S. 640, 649 (2000) (“[T]he general mission of the Boy Scouts is clear: ‘[t]o instill values in young people’ ” (quoting the Scouts’ mission statement)), and a group may use Aesop’s Fables to teach moral values, App. N11. When the Club attempted to teach Biblical-based moral values, however, it was excluded because its activities “d[id] not involve merely a religious perspective on the secular subject of morality” and because “it [was] clear from the conduct of the meetings that the Good News Club goes far beyond merely stating its viewpoint.” 202 F. 3d, at 510.

From no other group does respondent require the sterility of speech that it demands of petitioners. The Boy Scouts could undoubtedly buttress their exhortations to keep “morally straight” and live “clean” lives, see Boy Scouts of America v. Dale, supra, at 649, by giving reasons why that is a good idea—because parents want and expect it, because it will make the scouts “better” and “more successful” people, because it will emulate such admired past Scouts as former President Gerald Ford. The Club, however, may only discuss morals and character, and cannot give its reasons why they should be fostered—because God wants and expects it, because it will make the Club members “saintly” people, and because it emulates Jesus Christ. The Club may not, in other words, independently discuss the religious premise on which its views are based—that God exists and His assistance is necessary to morality. It may not defend the premise, and it absolutely must not seek to persuade the children that the premise is true. The children must, so to say, take it on faith. This is blatant viewpoint discrimination. Just as calls to character based on patriotism will go unanswered if the listeners do not believe their country is good and just, calls to moral behavior based on God’s will are useless if the listeners do not believe that God exists. Effectiveness in presenting a viewpoint rests on the persuasiveness with which the speaker defends his premise—and in respondent’s facilities every premise but a religious one may be defended.

In Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819 (1995) , we struck down a similar viewpoint restriction. There, a private student newspaper sought funding from a student-activity fund on the same basis as its secular counterparts. And though the paper printed such directly religious material as exhortations to belief, see id., at 826 (quoting the paper’s self-described mission “ ‘to encourage students to consider what a personal relationship with Jesus Christ means’ ”); id., at 865 ( Souter, J., dissenting) (“ ‘The only way to salvation through Him is by confessing and repenting of sin. It is the Christian’s duty to make sinners aware of their need for salvation’ ” (quoting the paper)); see also id., at 865–867 (quoting other examples), we held that refusing to provide the funds discriminated on the basis of viewpoint, because the religious speech had been used to “provid[e] … a specific premise … from which a variety of subjects may be discussed and considered,” id., at 831 (opinion of the Court). The right to present a viewpoint based on a religion premise carried with it the right to defend the premise.

The dissenters emphasize that the religious speech used by the Club as the foundation for its views on morals and character is not just any type of religious speech—although they cannot agree exactly what type of religious speech it is. In Justice Stevens ’ view, it is speech “aimed principally at proselytizing or inculcating belief in a particular religious faith,” post, at 1; see also post, at 5, n. 3. This does not, to begin with, distinguish Rosenberger, which also involved proselytizing speech, as the above quotations show. See also Rosenberger, supra, at 844 (referring approvingly to the dissent’s description of the paper as a “wor[k] characterized by … evangelism”). But in addition, it does not distinguish the Club’s activities from those of the other groups using respondent’s forum—which have not, as Justice Stevens suggests, see post, at 2–3, been restricted to roundtable “discussions” of moral issues. Those groups may seek to inculcate children with their beliefs, and they may furthermore “recruit others to join their respective groups,” post, at 3. The Club must therefore have liberty to do the same, even if, as Justice Stevens fears without support in the record, see post, at 3, its actions may prove (shudder!) divisive. See Lamb’s Chapel, 508 U. S., at 395 (remarking that worries about “public unrest” caused by “proselytizing” are “difficult to defend as a reason to deny the presentation of a religious point of view”); cf. Lynch v. Donnelly, 465 U. S. 668, 684–685 (1984) (holding that “political divisiveness” could not invalidate inclusion of crche in municipal Christmas display); Cantwell v. Connecticut, 310 U. S., at 310–311.

Justice Souter , while agreeing that the Club’s religious speech “may be characterized as proselytizing,” post, at 5, n. 3, thinks that it is even more clearly excludable from respondent’s forum because it is essentially “an evangelical service of worship,” post, at 5. But we have previously rejected the attempt to distinguish worship from other religious speech, saying that “the distinction has [no] intelligible content,” and further, no “ relevance ” to the constitutional issue. Widmar v. Vincent, 454 U. S. 263, n. 6 (1981); see also Murdock v. Pennsylvania, 319 U. S., at 109 (refusing to distinguish evangelism from worship). 3 Those holdings are surely proved correct today by the dissenters’ inability to agree, even between themselves, into which subcategory of religious speech the Club’s activities fell. If the distinction did have content, it would be beyond the courts’ competence to administer. Widmar v. Vincent, supra, at 269, n. 6; cf. Lee v. Weisman, 505 U. S. 577, 616–617 (1992) ( Souter , J., concurring) (“I can hardly imagine a subject less amenable to the competence of the federal judiciary, or more deliberately to be avoided where possible,” than “comparative theology”). And if courts (and other government officials) were competent, applying the distinction would require state monitoring of private, religious speech with a degree of pervasiveness that we have previously found unacceptable. See, e.g., Rosenberger v. Rector and Visitors of Univ. of Va., supra, at 844–845; Widmar v. Vincent, supra, at 269, n. 6. I will not endorse an approach that suffers such a wondrous diversity of flaws.

* * *

With these words of explanation, I join the opinion of the Court.


Notes

1 In this regard, I should note the inaccuracy of the Justice Souter’s claim that the reasonableness of the forum limitation is not properly before us, see post, at 2–3, and n. 1 (dissenting opinion). Petitioners argued, both in their papers filed in the District Court, Memorandum of Law in Support of Cross-Motion for Summary Judgment in No. 97-CV-0302 (NDNY), pp. 20–22, and in their brief filed on appeal, Brief for Appellants in No. 98–9494 (CA2), pp. 33–35, that respondent’s exclusion of them from the forum was unreasonable in light of the purposes served by the forum. Although the District Court did say in passing that the reasonableness of respondent’s general restriction on use of its facilities for religious purposes was not challenged, see 21 F. Supp.2d 147, 154 (NDNY 1998), the Court of Appeals apparently decided that the particular reasonableness challenge brought by petitioners had been preserved, because it addressed the argument on the merits, see 202 F. 3d 502, 509 (CA2 2000) (“Taking first the reasonableness criterion, the Club argues that the restriction is unreasonable … . This argument is foreclosed by precedent”).

2 Neither does the disagreement center on the mode of the Club’s speech—the fact that it sings songs and plays games. Although a forum could perhaps be opened to lectures but not plays, debates but not concerts, respondent has placed no such restrictions on the use of its facilities. See App. N8, N14, N19 (allowing seminars, concerts, and plays).

3 We have drawn a different distinction—between religious speech generally and speech about religion—but only with regard to restrictions the State must place on its own speech, where pervasive state monitoring is unproblematic. See School Dist. of Abington Township v. Schempp, 374 U. S. 203, 225 (1963) (State schools in their official capacity may not teach religion but may teach about religion). Whatever the rule there, licensing and monitoring private religious speech is an entirely different matter, see, e.g., Kunz v. New York, 340 U. S. 290, 293–294 (1951) , even in a limited public forum where the state has some authority to draw subject-matter distinctions.


TOP

Concurrence

GOOD NEWS CLUB, et al. , PETITIONERS v. MILFORD CENTRAL SCHOOL

on writ of certiorari to the united states court of appeals for the second circuit


[June 11, 2001]

Justice Scalia , concurring.

I join the Court’s opinion but write separately to explain further my views on two issues.

I

First, I join Part IV of the Court’s opinion, regarding the Establishment Clause issue, with the understanding that its consideration of coercive pressure, see ante, at 14, and perceptions of endorsement, see ante, at 14–15, 17–18, “to the extent” that the law makes such factors relevant, is consistent with the belief (which I hold) that in this case that extent is zero. As to coercive pressure: Physical coercion is not at issue here; and so-called “peer pressure,” if it can even been considered coercion, is, when it arises from private activities, one of the attendant consequences of a freedom of association that is constitutionally protected, see, e.g., Roberts v. United States Jaycees, 468 U. S. 609, 622 (1984) ; NAACP v. Alabama ex rel. Patterson, 357 U. S. 449, 460–461 (1958) . What is at play here is not coercion, but the compulsion of ideas—and the private right to exert and receive that compulsion (or to have one’s children receive it) is protected by the Free Speech and Free Exercise Clauses, see, e.g., Heffron v. International Soc. for Krishna Consciousness, Inc., 452 U. S. 640, 647 (1981) ; Murdock v. Pennsylvania, 319 U. S. 105, 108–109 (1943) ; Cantwell v. Connecticut, 310 U. S. 296, 307–310 (1940) , not banned by the Establishment Clause. A priest has as much liberty to proselytize as a patriot.

As to endorsement, I have previously written that “[r]eligious expression cannot violate the Establishment Clause where it (1) is purely private and (2) occurs in a traditional or designated public forum, publicly announced and open to all on equal terms.” Capitol Square Review and Advisory Bd. v. Pinette, 515 U. S. 753, 770 (1995) . The same is true of private speech that occurs in a limited public forum, publicly announced, whose boundaries are not drawn to favor religious groups but instead permit a cross-section of uses. In that context, which is this case, “erroneous conclusions [about endorsement] do not count.” Id., at 765. See also Lamb’s Chapel v. Center Moriches Union Free School Dist., 508 U. S. 384, 401 (1993) ( Scalia, J., concurring in judgment) (“I would hold, simply and clearly, that giving [a private religious group] nondiscriminatory access to school facilities cannot violate [the Establishment Clause] because it does not signify state or local embrace of a particular religious sect”).

II

Second, since we have rejected the only reason that respondent gave for excluding the Club’s speech from a forum that clearly included it (the forum was opened to any “us[e] pertaining to the welfare of the community,” App. to Pet. for Cert. D1), I do not suppose it matters whether the exclusion is characterized as viewpoint or subject-matter discrimination. Lacking any legitimate reason for excluding the Club’s speech from its forum—“because it’s religious” will not do, see, e.g., Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 532–533, 546 (1993) ; Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872, 877–878 (1990) —respondent would seem to fail First Amendment scrutiny regardless of how its action is characterized. Even subject-matter limits must at least be “reasonable in light of the purpose served by the forum,” Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U. S. 788, 806 (1985) . 1 But I agree, in any event, that respondent did discriminate on the basis of viewpoint.

As I understand it, the point of disagreement between the Court and the dissenters (and the Court of Appeals) with regard to petitioner’s Free Speech Clause claim is not whether the Good News Club must be permitted to present religious viewpoints on morals and character in respondent’s forum, which has been opened to secular discussions of that subject, see ante, at 7–8. 2 The answer to that is established by our decision in Lamb’s Chapel, supra. The point of disagreement is not even whether some of the Club’s religious speech fell within the protection of Lamb’s Chapel . It certainly did. See ante, at 8; 202 F. 3d 502, 509 (CA2 2000) (the Club’s “teachings may involve secular values such as obedience or resisting jealousy”).

The disagreement, rather, regards the portions of the Club’s meetings that are not “purely” “discussions” of morality and character from a religious viewpoint. The Club, for example, urges children “who already believe in the Lord Jesus as their Savior” to “[s]top and ask God for the strength and the ‘want’ … to obey Him,” 21 F. Supp.2d 147, 156 (NDNY 1998) (internal quotation marks omitted), and it invites children who “don’t know Jesus as Savior” to “trust the Lord Jesus to be [their] Savior from sin,” ibid. The dissenters and the Second Circuit say that the presence of such additional speech, because it is purely religious, transforms the Club’s meetings into something different in kind from other, nonreligious activities that teach moral and character development. See post, at 4–5 ( Stevens , J., dissenting); post, at 4–5 ( Souter , J., dissenting); 202 F. 3d, at 509–511. Therefore, the argument goes, excluding the Club is not viewpoint discrimination. I disagree.

Respondent has opened its facilities to any “us[e] pertaining to the welfare of the community, provided that such us[e] shall be nonexclusive and shall be opened to the general public.” App. to Pet. for Cert. D1. Shaping the moral and character development of children certainly “pertain[s] to the welfare of the community.” Thus, respondent has agreed that groups engaged in the endeavor of developing character may use its forum. The Boy Scouts, for example, may seek “to influence a boy’s character, development and spiritual growth,” App. N10–N11; cf. Boy Scouts of America v. Dale, 530 U. S. 640, 649 (2000) (“[T]he general mission of the Boy Scouts is clear: ‘[t]o instill values in young people’ ” (quoting the Scouts’ mission statement)), and a group may use Aesop’s Fables to teach moral values, App. N11. When the Club attempted to teach Biblical-based moral values, however, it was excluded because its activities “d[id] not involve merely a religious perspective on the secular subject of morality” and because “it [was] clear from the conduct of the meetings that the Good News Club goes far beyond merely stating its viewpoint.” 202 F. 3d, at 510.

From no other group does respondent require the sterility of speech that it demands of petitioners. The Boy Scouts could undoubtedly buttress their exhortations to keep “morally straight” and live “clean” lives, see Boy Scouts of America v. Dale, supra, at 649, by giving reasons why that is a good idea—because parents want and expect it, because it will make the scouts “better” and “more successful” people, because it will emulate such admired past Scouts as former President Gerald Ford. The Club, however, may only discuss morals and character, and cannot give its reasons why they should be fostered—because God wants and expects it, because it will make the Club members “saintly” people, and because it emulates Jesus Christ. The Club may not, in other words, independently discuss the religious premise on which its views are based—that God exists and His assistance is necessary to morality. It may not defend the premise, and it absolutely must not seek to persuade the children that the premise is true. The children must, so to say, take it on faith. This is blatant viewpoint discrimination. Just as calls to character based on patriotism will go unanswered if the listeners do not believe their country is good and just, calls to moral behavior based on God’s will are useless if the listeners do not believe that God exists. Effectiveness in presenting a viewpoint rests on the persuasiveness with which the speaker defends his premise—and in respondent’s facilities every premise but a religious one may be defended.

In Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819 (1995) , we struck down a similar viewpoint restriction. There, a private student newspaper sought funding from a student-activity fund on the same basis as its secular counterparts. And though the paper printed such directly religious material as exhortations to belief, see id., at 826 (quoting the paper’s self-described mission “ ‘to encourage students to consider what a personal relationship with Jesus Christ means’ ”); id., at 865 ( Souter, J., dissenting) (“ ‘The only way to salvation through Him is by confessing and repenting of sin. It is the Christian’s duty to make sinners aware of their need for salvation’ ” (quoting the paper)); see also id., at 865–867 (quoting other examples), we held that refusing to provide the funds discriminated on the basis of viewpoint, because the religious speech had been used to “provid[e] … a specific premise … from which a variety of subjects may be discussed and considered,” id., at 831 (opinion of the Court). The right to present a viewpoint based on a religion premise carried with it the right to defend the premise.

The dissenters emphasize that the religious speech used by the Club as the foundation for its views on morals and character is not just any type of religious speech—although they cannot agree exactly what type of religious speech it is. In Justice Stevens ’ view, it is speech “aimed principally at proselytizing or inculcating belief in a particular religious faith,” post, at 1; see also post, at 5, n. 3. This does not, to begin with, distinguish Rosenberger, which also involved proselytizing speech, as the above quotations show. See also Rosenberger, supra, at 844 (referring approvingly to the dissent’s description of the paper as a “wor[k] characterized by … evangelism”). But in addition, it does not distinguish the Club’s activities from those of the other groups using respondent’s forum—which have not, as Justice Stevens suggests, see post, at 2–3, been restricted to roundtable “discussions” of moral issues. Those groups may seek to inculcate children with their beliefs, and they may furthermore “recruit others to join their respective groups,” post, at 3. The Club must therefore have liberty to do the same, even if, as Justice Stevens fears without support in the record, see post, at 3, its actions may prove (shudder!) divisive. See Lamb’s Chapel, 508 U. S., at 395 (remarking that worries about “public unrest” caused by “proselytizing” are “difficult to defend as a reason to deny the presentation of a religious point of view”); cf. Lynch v. Donnelly, 465 U. S. 668, 684–685 (1984) (holding that “political divisiveness” could not invalidate inclusion of crche in municipal Christmas display); Cantwell v. Connecticut, 310 U. S., at 310–311.

Justice Souter , while agreeing that the Club’s religious speech “may be characterized as proselytizing,” post, at 5, n. 3, thinks that it is even more clearly excludable from respondent’s forum because it is essentially “an evangelical service of worship,” post, at 5. But we have previously rejected the attempt to distinguish worship from other religious speech, saying that “the distinction has [no] intelligible content,” and further, no “ relevance ” to the constitutional issue. Widmar v. Vincent, 454 U. S. 263, n. 6 (1981); see also Murdock v. Pennsylvania, 319 U. S., at 109 (refusing to distinguish evangelism from worship). 3 Those holdings are surely proved correct today by the dissenters’ inability to agree, even between themselves, into which subcategory of religious speech the Club’s activities fell. If the distinction did have content, it would be beyond the courts’ competence to administer. Widmar v. Vincent, supra, at 269, n. 6; cf. Lee v. Weisman, 505 U. S. 577, 616–617 (1992) ( Souter , J., concurring) (“I can hardly imagine a subject less amenable to the competence of the federal judiciary, or more deliberately to be avoided where possible,” than “comparative theology”). And if courts (and other government officials) were competent, applying the distinction would require state monitoring of private, religious speech with a degree of pervasiveness that we have previously found unacceptable. See, e.g., Rosenberger v. Rector and Visitors of Univ. of Va., supra, at 844–845; Widmar v. Vincent, supra, at 269, n. 6. I will not endorse an approach that suffers such a wondrous diversity of flaws.

* * *

With these words of explanation, I join the opinion of the Court.


Notes

1 In this regard, I should note the inaccuracy of the Justice Souter’s claim that the reasonableness of the forum limitation is not properly before us, see post, at 2–3, and n. 1 (dissenting opinion). Petitioners argued, both in their papers filed in the District Court, Memorandum of Law in Support of Cross-Motion for Summary Judgment in No. 97-CV-0302 (NDNY), pp. 20–22, and in their brief filed on appeal, Brief for Appellants in No. 98–9494 (CA2), pp. 33–35, that respondent’s exclusion of them from the forum was unreasonable in light of the purposes served by the forum. Although the District Court did say in passing that the reasonableness of respondent’s general restriction on use of its facilities for religious purposes was not challenged, see 21 F. Supp.2d 147, 154 (NDNY 1998), the Court of Appeals apparently decided that the particular reasonableness challenge brought by petitioners had been preserved, because it addressed the argument on the merits, see 202 F. 3d 502, 509 (CA2 2000) (“Taking first the reasonableness criterion, the Club argues that the restriction is unreasonable … . This argument is foreclosed by precedent”).

2 Neither does the disagreement center on the mode of the Club’s speech—the fact that it sings songs and plays games. Although a forum could perhaps be opened to lectures but not plays, debates but not concerts, respondent has placed no such restrictions on the use of its facilities. See App. N8, N14, N19 (allowing seminars, concerts, and plays).

3 We have drawn a different distinction—between religious speech generally and speech about religion—but only with regard to restrictions the State must place on its own speech, where pervasive state monitoring is unproblematic. See School Dist. of Abington Township v. Schempp, 374 U. S. 203, 225 (1963) (State schools in their official capacity may not teach religion but may teach about religion). Whatever the rule there, licensing and monitoring private religious speech is an entirely different matter, see, e.g., Kunz v. New York, 340 U. S. 290, 293–294 (1951) , even in a limited public forum where the state has some authority to draw subject-matter distinctions.


TOP

Concurrence

GOOD NEWS CLUB, et al. , PETITIONERS v. MILFORD CENTRAL SCHOOL

on writ of certiorari to the united states court of appeals for the second circuit


[June 11, 2001]

Justice Scalia , concurring.

I join the Court’s opinion but write separately to explain further my views on two issues.

I

First, I join Part IV of the Court’s opinion, regarding the Establishment Clause issue, with the understanding that its consideration of coercive pressure, see ante, at 14, and perceptions of endorsement, see ante, at 14–15, 17–18, “to the extent” that the law makes such factors relevant, is consistent with the belief (which I hold) that in this case that extent is zero. As to coercive pressure: Physical coercion is not at issue here; and so-called “peer pressure,” if it can even been considered coercion, is, when it arises from private activities, one of the attendant consequences of a freedom of association that is constitutionally protected, see, e.g., Roberts v. United States Jaycees, 468 U. S. 609, 622 (1984) ; NAACP v. Alabama ex rel. Patterson, 357 U. S. 449, 460–461 (1958) . What is at play here is not coercion, but the compulsion of ideas—and the private right to exert and receive that compulsion (or to have one’s children receive it) is protected by the Free Speech and Free Exercise Clauses, see, e.g., Heffron v. International Soc. for Krishna Consciousness, Inc., 452 U. S. 640, 647 (1981) ; Murdock v. Pennsylvania, 319 U. S. 105, 108–109 (1943) ; Cantwell v. Connecticut, 310 U. S. 296, 307–310 (1940) , not banned by the Establishment Clause. A priest has as much liberty to proselytize as a patriot.

As to endorsement, I have previously written that “[r]eligious expression cannot violate the Establishment Clause where it (1) is purely private and (2) occurs in a traditional or designated public forum, publicly announced and open to all on equal terms.” Capitol Square Review and Advisory Bd. v. Pinette, 515 U. S. 753, 770 (1995) . The same is true of private speech that occurs in a limited public forum, publicly announced, whose boundaries are not drawn to favor religious groups but instead permit a cross-section of uses. In that context, which is this case, “erroneous conclusions [about endorsement] do not count.” Id., at 765. See also Lamb’s Chapel v. Center Moriches Union Free School Dist., 508 U. S. 384, 401 (1993) ( Scalia, J., concurring in judgment) (“I would hold, simply and clearly, that giving [a private religious group] nondiscriminatory access to school facilities cannot violate [the Establishment Clause] because it does not signify state or local embrace of a particular religious sect”).

II

Second, since we have rejected the only reason that respondent gave for excluding the Club’s speech from a forum that clearly included it (the forum was opened to any “us[e] pertaining to the welfare of the community,” App. to Pet. for Cert. D1), I do not suppose it matters whether the exclusion is characterized as viewpoint or subject-matter discrimination. Lacking any legitimate reason for excluding the Club’s speech from its forum—“because it’s religious” will not do, see, e.g., Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 532–533, 546 (1993) ; Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872, 877–878 (1990) —respondent would seem to fail First Amendment scrutiny regardless of how its action is characterized. Even subject-matter limits must at least be “reasonable in light of the purpose served by the forum,” Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U. S. 788, 806 (1985) . 1 But I agree, in any event, that respondent did discriminate on the basis of viewpoint.

As I understand it, the point of disagreement between the Court and the dissenters (and the Court of Appeals) with regard to petitioner’s Free Speech Clause claim is not whether the Good News Club must be permitted to present religious viewpoints on morals and character in respondent’s forum, which has been opened to secular discussions of that subject, see ante, at 7–8. 2 The answer to that is established by our decision in Lamb’s Chapel, supra. The point of disagreement is not even whether some of the Club’s religious speech fell within the protection of Lamb’s Chapel . It certainly did. See ante, at 8; 202 F. 3d 502, 509 (CA2 2000) (the Club’s “teachings may involve secular values such as obedience or resisting jealousy”).

The disagreement, rather, regards the portions of the Club’s meetings that are not “purely” “discussions” of morality and character from a religious viewpoint. The Club, for example, urges children “who already believe in the Lord Jesus as their Savior” to “[s]top and ask God for the strength and the ‘want’ … to obey Him,” 21 F. Supp.2d 147, 156 (NDNY 1998) (internal quotation marks omitted), and it invites children who “don’t know Jesus as Savior” to “trust the Lord Jesus to be [their] Savior from sin,” ibid. The dissenters and the Second Circuit say that the presence of such additional speech, because it is purely religious, transforms the Club’s meetings into something different in kind from other, nonreligious activities that teach moral and character development. See post, at 4–5 ( Stevens , J., dissenting); post, at 4–5 ( Souter , J., dissenting); 202 F. 3d, at 509–511. Therefore, the argument goes, excluding the Club is not viewpoint discrimination. I disagree.

Respondent has opened its facilities to any “us[e] pertaining to the welfare of the community, provided that such us[e] shall be nonexclusive and shall be opened to the general public.” App. to Pet. for Cert. D1. Shaping the moral and character development of children certainly “pertain[s] to the welfare of the community.” Thus, respondent has agreed that groups engaged in the endeavor of developing character may use its forum. The Boy Scouts, for example, may seek “to influence a boy’s character, development and spiritual growth,” App. N10–N11; cf. Boy Scouts of America v. Dale, 530 U. S. 640, 649 (2000) (“[T]he general mission of the Boy Scouts is clear: ‘[t]o instill values in young people’ ” (quoting the Scouts’ mission statement)), and a group may use Aesop’s Fables to teach moral values, App. N11. When the Club attempted to teach Biblical-based moral values, however, it was excluded because its activities “d[id] not involve merely a religious perspective on the secular subject of morality” and because “it [was] clear from the conduct of the meetings that the Good News Club goes far beyond merely stating its viewpoint.” 202 F. 3d, at 510.

From no other group does respondent require the sterility of speech that it demands of petitioners. The Boy Scouts could undoubtedly buttress their exhortations to keep “morally straight” and live “clean” lives, see Boy Scouts of America v. Dale, supra, at 649, by giving reasons why that is a good idea—because parents want and expect it, because it will make the scouts “better” and “more successful” people, because it will emulate such admired past Scouts as former President Gerald Ford. The Club, however, may only discuss morals and character, and cannot give its reasons why they should be fostered—because God wants and expects it, because it will make the Club members “saintly” people, and because it emulates Jesus Christ. The Club may not, in other words, independently discuss the religious premise on which its views are based—that God exists and His assistance is necessary to morality. It may not defend the premise, and it absolutely must not seek to persuade the children that the premise is true. The children must, so to say, take it on faith. This is blatant viewpoint discrimination. Just as calls to character based on patriotism will go unanswered if the listeners do not believe their country is good and just, calls to moral behavior based on God’s will are useless if the listeners do not believe that God exists. Effectiveness in presenting a viewpoint rests on the persuasiveness with which the speaker defends his premise—and in respondent’s facilities every premise but a religious one may be defended.

In Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819 (1995) , we struck down a similar viewpoint restriction. There, a private student newspaper sought funding from a student-activity fund on the same basis as its secular counterparts. And though the paper printed such directly religious material as exhortations to belief, see id., at 826 (quoting the paper’s self-described mission “ ‘to encourage students to consider what a personal relationship with Jesus Christ means’ ”); id., at 865 ( Souter, J., dissenting) (“ ‘The only way to salvation through Him is by confessing and repenting of sin. It is the Christian’s duty to make sinners aware of their need for salvation’ ” (quoting the paper)); see also id., at 865–867 (quoting other examples), we held that refusing to provide the funds discriminated on the basis of viewpoint, because the religious speech had been used to “provid[e] … a specific premise … from which a variety of subjects may be discussed and considered,” id., at 831 (opinion of the Court). The right to present a viewpoint based on a religion premise carried with it the right to defend the premise.

The dissenters emphasize that the religious speech used by the Club as the foundation for its views on morals and character is not just any type of religious speech—although they cannot agree exactly what type of religious speech it is. In Justice Stevens ’ view, it is speech “aimed principally at proselytizing or inculcating belief in a particular religious faith,” post, at 1; see also post, at 5, n. 3. This does not, to begin with, distinguish Rosenberger, which also involved proselytizing speech, as the above quotations show. See also Rosenberger, supra, at 844 (referring approvingly to the dissent’s description of the paper as a “wor[k] characterized by … evangelism”). But in addition, it does not distinguish the Club’s activities from those of the other groups using respondent’s forum—which have not, as Justice Stevens suggests, see post, at 2–3, been restricted to roundtable “discussions” of moral issues. Those groups may seek to inculcate children with their beliefs, and they may furthermore “recruit others to join their respective groups,” post, at 3. The Club must therefore have liberty to do the same, even if, as Justice Stevens fears without support in the record, see post, at 3, its actions may prove (shudder!) divisive. See Lamb’s Chapel, 508 U. S., at 395 (remarking that worries about “public unrest” caused by “proselytizing” are “difficult to defend as a reason to deny the presentation of a religious point of view”); cf. Lynch v. Donnelly, 465 U. S. 668, 684–685 (1984) (holding that “political divisiveness” could not invalidate inclusion of crche in municipal Christmas display); Cantwell v. Connecticut, 310 U. S., at 310–311.

Justice Souter , while agreeing that the Club’s religious speech “may be characterized as proselytizing,” post, at 5, n. 3, thinks that it is even more clearly excludable from respondent’s forum because it is essentially “an evangelical service of worship,” post, at 5. But we have previously rejected the attempt to distinguish worship from other religious speech, saying that “the distinction has [no] intelligible content,” and further, no “ relevance ” to the constitutional issue. Widmar v. Vincent, 454 U. S. 263, n. 6 (1981); see also Murdock v. Pennsylvania, 319 U. S., at 109 (refusing to distinguish evangelism from worship). 3 Those holdings are surely proved correct today by the dissenters’ inability to agree, even between themselves, into which subcategory of religious speech the Club’s activities fell. If the distinction did have content, it would be beyond the courts’ competence to administer. Widmar v. Vincent, supra, at 269, n. 6; cf. Lee v. Weisman, 505 U. S. 577, 616–617 (1992) ( Souter , J., concurring) (“I can hardly imagine a subject less amenable to the competence of the federal judiciary, or more deliberately to be avoided where possible,” than “comparative theology”). And if courts (and other government officials) were competent, applying the distinction would require state monitoring of private, religious speech with a degree of pervasiveness that we have previously found unacceptable. See, e.g., Rosenberger v. Rector and Visitors of Univ. of Va., supra, at 844–845; Widmar v. Vincent, supra, at 269, n. 6. I will not endorse an approach that suffers such a wondrous diversity of flaws.

* * *

With these words of explanation, I join the opinion of the Court.


Notes

1 In this regard, I should note the inaccuracy of the Justice Souter’s claim that the reasonableness of the forum limitation is not properly before us, see post, at 2–3, and n. 1 (dissenting opinion). Petitioners argued, both in their papers filed in the District Court, Memorandum of Law in Support of Cross-Motion for Summary Judgment in No. 97-CV-0302 (NDNY), pp. 20–22, and in their brief filed on appeal, Brief for Appellants in No. 98–9494 (CA2), pp. 33–35, that respondent’s exclusion of them from the forum was unreasonable in light of the purposes served by the forum. Although the District Court did say in passing that the reasonableness of respondent’s general restriction on use of its facilities for religious purposes was not challenged, see 21 F. Supp.2d 147, 154 (NDNY 1998), the Court of Appeals apparently decided that the particular reasonableness challenge brought by petitioners had been preserved, because it addressed the argument on the merits, see 202 F. 3d 502, 509 (CA2 2000) (“Taking first the reasonableness criterion, the Club argues that the restriction is unreasonable … . This argument is foreclosed by precedent”).

2 Neither does the disagreement center on the mode of the Club’s speech—the fact that it sings songs and plays games. Although a forum could perhaps be opened to lectures but not plays, debates but not concerts, respondent has placed no such restrictions on the use of its facilities. See App. N8, N14, N19 (allowing seminars, concerts, and plays).

3 We have drawn a different distinction—between religious speech generally and speech about religion—but only with regard to restrictions the State must place on its own speech, where pervasive state monitoring is unproblematic. See School Dist. of Abington Township v. Schempp, 374 U. S. 203, 225 (1963) (State schools in their official capacity may not teach religion but may teach about religion). Whatever the rule there, licensing and monitoring private religious speech is an entirely different matter, see, e.g., Kunz v. New York, 340 U. S. 290, 293–294 (1951) , even in a limited public forum where the state has some authority to draw subject-matter distinctions.


TOP

Concurrence

GOOD NEWS CLUB, et al. , PETITIONERS v. MILFORD CENTRAL SCHOOL

on writ of certiorari to the united states court of appeals for the second circuit


[June 11, 2001]

Justice Scalia , concurring.

I join the Court’s opinion but write separately to explain further my views on two issues.

I

First, I join Part IV of the Court’s opinion, regarding the Establishment Clause issue, with the understanding that its consideration of coercive pressure, see ante, at 14, and perceptions of endorsement, see ante, at 14–15, 17–18, “to the extent” that the law makes such factors relevant, is consistent with the belief (which I hold) that in this case that extent is zero. As to coercive pressure: Physical coercion is not at issue here; and so-called “peer pressure,” if it can even been considered coercion, is, when it arises from private activities, one of the attendant consequences of a freedom of association that is constitutionally protected, see, e.g., Roberts v. United States Jaycees, 468 U. S. 609, 622 (1984) ; NAACP v. Alabama ex rel. Patterson, 357 U. S. 449, 460–461 (1958) . What is at play here is not coercion, but the compulsion of ideas—and the private right to exert and receive that compulsion (or to have one’s children receive it) is protected by the Free Speech and Free Exercise Clauses, see, e.g., Heffron v. International Soc. for Krishna Consciousness, Inc., 452 U. S. 640, 647 (1981) ; Murdock v. Pennsylvania, 319 U. S. 105, 108–109 (1943) ; Cantwell v. Connecticut, 310 U. S. 296, 307–310 (1940) , not banned by the Establishment Clause. A priest has as much liberty to proselytize as a patriot.

As to endorsement, I have previously written that “[r]eligious expression cannot violate the Establishment Clause where it (1) is purely private and (2) occurs in a traditional or designated public forum, publicly announced and open to all on equal terms.” Capitol Square Review and Advisory Bd. v. Pinette, 515 U. S. 753, 770 (1995) . The same is true of private speech that occurs in a limited public forum, publicly announced, whose boundaries are not drawn to favor religious groups but instead permit a cross-section of uses. In that context, which is this case, “erroneous conclusions [about endorsement] do not count.” Id., at 765. See also Lamb’s Chapel v. Center Moriches Union Free School Dist., 508 U. S. 384, 401 (1993) ( Scalia, J., concurring in judgment) (“I would hold, simply and clearly, that giving [a private religious group] nondiscriminatory access to school facilities cannot violate [the Establishment Clause] because it does not signify state or local embrace of a particular religious sect”).

II

Second, since we have rejected the only reason that respondent gave for excluding the Club’s speech from a forum that clearly included it (the forum was opened to any “us[e] pertaining to the welfare of the community,” App. to Pet. for Cert. D1), I do not suppose it matters whether the exclusion is characterized as viewpoint or subject-matter discrimination. Lacking any legitimate reason for excluding the Club’s speech from its forum—“because it’s religious” will not do, see, e.g., Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 532–533, 546 (1993) ; Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872, 877–878 (1990) —respondent would seem to fail First Amendment scrutiny regardless of how its action is characterized. Even subject-matter limits must at least be “reasonable in light of the purpose served by the forum,” Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U. S. 788, 806 (1985) . 1 But I agree, in any event, that respondent did discriminate on the basis of viewpoint.

As I understand it, the point of disagreement between the Court and the dissenters (and the Court of Appeals) with regard to petitioner’s Free Speech Clause claim is not whether the Good News Club must be permitted to present religious viewpoints on morals and character in respondent’s forum, which has been opened to secular discussions of that subject, see ante, at 7–8. 2 The answer to that is established by our decision in Lamb’s Chapel, supra. The point of disagreement is not even whether some of the Club’s religious speech fell within the protection of Lamb’s Chapel . It certainly did. See ante, at 8; 202 F. 3d 502, 509 (CA2 2000) (the Club’s “teachings may involve secular values such as obedience or resisting jealousy”).

The disagreement, rather, regards the portions of the Club’s meetings that are not “purely” “discussions” of morality and character from a religious viewpoint. The Club, for example, urges children “who already believe in the Lord Jesus as their Savior” to “[s]top and ask God for the strength and the ‘want’ … to obey Him,” 21 F. Supp.2d 147, 156 (NDNY 1998) (internal quotation marks omitted), and it invites children who “don’t know Jesus as Savior” to “trust the Lord Jesus to be [their] Savior from sin,” ibid. The dissenters and the Second Circuit say that the presence of such additional speech, because it is purely religious, transforms the Club’s meetings into something different in kind from other, nonreligious activities that teach moral and character development. See post, at 4–5 ( Stevens , J., dissenting); post, at 4–5 ( Souter , J., dissenting); 202 F. 3d, at 509–511. Therefore, the argument goes, excluding the Club is not viewpoint discrimination. I disagree.

Respondent has opened its facilities to any “us[e] pertaining to the welfare of the community, provided that such us[e] shall be nonexclusive and shall be opened to the general public.” App. to Pet. for Cert. D1. Shaping the moral and character development of children certainly “pertain[s] to the welfare of the community.” Thus, respondent has agreed that groups engaged in the endeavor of developing character may use its forum. The Boy Scouts, for example, may seek “to influence a boy’s character, development and spiritual growth,” App. N10–N11; cf. Boy Scouts of America v. Dale, 530 U. S. 640, 649 (2000) (“[T]he general mission of the Boy Scouts is clear: ‘[t]o instill values in young people’ ” (quoting the Scouts’ mission statement)), and a group may use Aesop’s Fables to teach moral values, App. N11. When the Club attempted to teach Biblical-based moral values, however, it was excluded because its activities “d[id] not involve merely a religious perspective on the secular subject of morality” and because “it [was] clear from the conduct of the meetings that the Good News Club goes far beyond merely stating its viewpoint.” 202 F. 3d, at 510.

From no other group does respondent require the sterility of speech that it demands of petitioners. The Boy Scouts could undoubtedly buttress their exhortations to keep “morally straight” and live “clean” lives, see Boy Scouts of America v. Dale, supra, at 649, by giving reasons why that is a good idea—because parents want and expect it, because it will make the scouts “better” and “more successful” people, because it will emulate such admired past Scouts as former President Gerald Ford. The Club, however, may only discuss morals and character, and cannot give its reasons why they should be fostered—because God wants and expects it, because it will make the Club members “saintly” people, and because it emulates Jesus Christ. The Club may not, in other words, independently discuss the religious premise on which its views are based—that God exists and His assistance is necessary to morality. It may not defend the premise, and it absolutely must not seek to persuade the children that the premise is true. The children must, so to say, take it on faith. This is blatant viewpoint discrimination. Just as calls to character based on patriotism will go unanswered if the listeners do not believe their country is good and just, calls to moral behavior based on God’s will are useless if the listeners do not believe that God exists. Effectiveness in presenting a viewpoint rests on the persuasiveness with which the speaker defends his premise—and in respondent’s facilities every premise but a religious one may be defended.

In Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819 (1995) , we struck down a similar viewpoint restriction. There, a private student newspaper sought funding from a student-activity fund on the same basis as its secular counterparts. And though the paper printed such directly religious material as exhortations to belief, see id., at 826 (quoting the paper’s self-described mission “ ‘to encourage students to consider what a personal relationship with Jesus Christ means’ ”); id., at 865 ( Souter, J., dissenting) (“ ‘The only way to salvation through Him is by confessing and repenting of sin. It is the Christian’s duty to make sinners aware of their need for salvation’ ” (quoting the paper)); see also id., at 865–867 (quoting other examples), we held that refusing to provide the funds discriminated on the basis of viewpoint, because the religious speech had been used to “provid[e] … a specific premise … from which a variety of subjects may be discussed and considered,” id., at 831 (opinion of the Court). The right to present a viewpoint based on a religion premise carried with it the right to defend the premise.

The dissenters emphasize that the religious speech used by the Club as the foundation for its views on morals and character is not just any type of religious speech—although they cannot agree exactly what type of religious speech it is. In Justice Stevens ’ view, it is speech “aimed principally at proselytizing or inculcating belief in a particular religious faith,” post, at 1; see also post, at 5, n. 3. This does not, to begin with, distinguish Rosenberger, which also involved proselytizing speech, as the above quotations show. See also Rosenberger, supra, at 844 (referring approvingly to the dissent’s description of the paper as a “wor[k] characterized by … evangelism”). But in addition, it does not distinguish the Club’s activities from those of the other groups using respondent’s forum—which have not, as Justice Stevens suggests, see post, at 2–3, been restricted to roundtable “discussions” of moral issues. Those groups may seek to inculcate children with their beliefs, and they may furthermore “recruit others to join their respective groups,” post, at 3. The Club must therefore have liberty to do the same, even if, as Justice Stevens fears without support in the record, see post, at 3, its actions may prove (shudder!) divisive. See Lamb’s Chapel, 508 U. S., at 395 (remarking that worries about “public unrest” caused by “proselytizing” are “difficult to defend as a reason to deny the presentation of a religious point of view”); cf. Lynch v. Donnelly, 465 U. S. 668, 684–685 (1984) (holding that “political divisiveness” could not invalidate inclusion of crche in municipal Christmas display); Cantwell v. Connecticut, 310 U. S., at 310–311.

Justice Souter , while agreeing that the Club’s religious speech “may be characterized as proselytizing,” post, at 5, n. 3, thinks that it is even more clearly excludable from respondent’s forum because it is essentially “an evangelical service of worship,” post, at 5. But we have previously rejected the attempt to distinguish worship from other religious speech, saying that “the distinction has [no] intelligible content,” and further, no “ relevance ” to the constitutional issue. Widmar v. Vincent, 454 U. S. 263, n. 6 (1981); see also Murdock v. Pennsylvania, 319 U. S., at 109 (refusing to distinguish evangelism from worship). 3 Those holdings are surely proved correct today by the dissenters’ inability to agree, even between themselves, into which subcategory of religious speech the Club’s activities fell. If the distinction did have content, it would be beyond the courts’ competence to administer. Widmar v. Vincent, supra, at 269, n. 6; cf. Lee v. Weisman, 505 U. S. 577, 616–617 (1992) ( Souter , J., concurring) (“I can hardly imagine a subject less amenable to the competence of the federal judiciary, or more deliberately to be avoided where possible,” than “comparative theology”). And if courts (and other government officials) were competent, applying the distinction would require state monitoring of private, religious speech with a degree of pervasiveness that we have previously found unacceptable. See, e.g., Rosenberger v. Rector and Visitors of Univ. of Va., supra, at 844–845; Widmar v. Vincent, supra, at 269, n. 6. I will not endorse an approach that suffers such a wondrous diversity of flaws.

* * *

With these words of explanation, I join the opinion of the Court.


Notes

1 In this regard, I should note the inaccuracy of the Justice Souter’s claim that the reasonableness of the forum limitation is not properly before us, see post, at 2–3, and n. 1 (dissenting opinion). Petitioners argued, both in their papers filed in the District Court, Memorandum of Law in Support of Cross-Motion for Summary Judgment in No. 97-CV-0302 (NDNY), pp. 20–22, and in their brief filed on appeal, Brief for Appellants in No. 98–9494 (CA2), pp. 33–35, that respondent’s exclusion of them from the forum was unreasonable in light of the purposes served by the forum. Although the District Court did say in passing that the reasonableness of respondent’s general restriction on use of its facilities for religious purposes was not challenged, see 21 F. Supp.2d 147, 154 (NDNY 1998), the Court of Appeals apparently decided that the particular reasonableness challenge brought by petitioners had been preserved, because it addressed the argument on the merits, see 202 F. 3d 502, 509 (CA2 2000) (“Taking first the reasonableness criterion, the Club argues that the restriction is unreasonable … . This argument is foreclosed by precedent”).

2 Neither does the disagreement center on the mode of the Club’s speech—the fact that it sings songs and plays games. Although a forum could perhaps be opened to lectures but not plays, debates but not concerts, respondent has placed no such restrictions on the use of its facilities. See App. N8, N14, N19 (allowing seminars, concerts, and plays).

3 We have drawn a different distinction—between religious speech generally and speech about religion—but only with regard to restrictions the State must place on its own speech, where pervasive state monitoring is unproblematic. See School Dist. of Abington Township v. Schempp, 374 U. S. 203, 225 (1963) (State schools in their official capacity may not teach religion but may teach about religion). Whatever the rule there, licensing and monitoring private religious speech is an entirely different matter, see, e.g., Kunz v. New York, 340 U. S. 290, 293–294 (1951) , even in a limited public forum where the state has some authority to draw subject-matter distinctions.


TOP

Concurrence

GOOD NEWS CLUB, et al. , PETITIONERS v. MILFORD CENTRAL SCHOOL

on writ of certiorari to the united states court of appeals for the second circuit


[June 11, 2001]

Justice Scalia , concurring.

I join the Court’s opinion but write separately to explain further my views on two issues.

I

First, I join Part IV of the Court’s opinion, regarding the Establishment Clause issue, with the understanding that its consideration of coercive pressure, see ante, at 14, and perceptions of endorsement, see ante, at 14–15, 17–18, “to the extent” that the law makes such factors relevant, is consistent with the belief (which I hold) that in this case that extent is zero. As to coercive pressure: Physical coercion is not at issue here; and so-called “peer pressure,” if it can even been considered coercion, is, when it arises from private activities, one of the attendant consequences of a freedom of association that is constitutionally protected, see, e.g., Roberts v. United States Jaycees, 468 U. S. 609, 622 (1984) ; NAACP v. Alabama ex rel. Patterson, 357 U. S. 449, 460–461 (1958) . What is at play here is not coercion, but the compulsion of ideas—and the private right to exert and receive that compulsion (or to have one’s children receive it) is protected by the Free Speech and Free Exercise Clauses, see, e.g., Heffron v. International Soc. for Krishna Consciousness, Inc., 452 U. S. 640, 647 (1981) ; Murdock v. Pennsylvania, 319 U. S. 105, 108–109 (1943) ; Cantwell v. Connecticut, 310 U. S. 296, 307–310 (1940) , not banned by the Establishment Clause. A priest has as much liberty to proselytize as a patriot.

As to endorsement, I have previously written that “[r]eligious expression cannot violate the Establishment Clause where it (1) is purely private and (2) occurs in a traditional or designated public forum, publicly announced and open to all on equal terms.” Capitol Square Review and Advisory Bd. v. Pinette, 515 U. S. 753, 770 (1995) . The same is true of private speech that occurs in a limited public forum, publicly announced, whose boundaries are not drawn to favor religious groups but instead permit a cross-section of uses. In that context, which is this case, “erroneous conclusions [about endorsement] do not count.” Id., at 765. See also Lamb’s Chapel v. Center Moriches Union Free School Dist., 508 U. S. 384, 401 (1993) ( Scalia, J., concurring in judgment) (“I would hold, simply and clearly, that giving [a private religious group] nondiscriminatory access to school facilities cannot violate [the Establishment Clause] because it does not signify state or local embrace of a particular religious sect”).

II

Second, since we have rejected the only reason that respondent gave for excluding the Club’s speech from a forum that clearly included it (the forum was opened to any “us[e] pertaining to the welfare of the community,” App. to Pet. for Cert. D1), I do not suppose it matters whether the exclusion is characterized as viewpoint or subject-matter discrimination. Lacking any legitimate reason for excluding the Club’s speech from its forum—“because it’s religious” will not do, see, e.g., Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 532–533, 546 (1993) ; Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872, 877–878 (1990) —respondent would seem to fail First Amendment scrutiny regardless of how its action is characterized. Even subject-matter limits must at least be “reasonable in light of the purpose served by the forum,” Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U. S. 788, 806 (1985) . 1 But I agree, in any event, that respondent did discriminate on the basis of viewpoint.

As I understand it, the point of disagreement between the Court and the dissenters (and the Court of Appeals) with regard to petitioner’s Free Speech Clause claim is not whether the Good News Club must be permitted to present religious viewpoints on morals and character in respondent’s forum, which has been opened to secular discussions of that subject, see ante, at 7–8. 2 The answer to that is established by our decision in Lamb’s Chapel, supra. The point of disagreement is not even whether some of the Club’s religious speech fell within the protection of Lamb’s Chapel . It certainly did. See ante, at 8; 202 F. 3d 502, 509 (CA2 2000) (the Club’s “teachings may involve secular values such as obedience or resisting jealousy”).

The disagreement, rather, regards the portions of the Club’s meetings that are not “purely” “discussions” of morality and character from a religious viewpoint. The Club, for example, urges children “who already believe in the Lord Jesus as their Savior” to “[s]top and ask God for the strength and the ‘want’ … to obey Him,” 21 F. Supp.2d 147, 156 (NDNY 1998) (internal quotation marks omitted), and it invites children who “don’t know Jesus as Savior” to “trust the Lord Jesus to be [their] Savior from sin,” ibid. The dissenters and the Second Circuit say that the presence of such additional speech, because it is purely religious, transforms the Club’s meetings into something different in kind from other, nonreligious activities that teach moral and character development. See post, at 4–5 ( Stevens , J., dissenting); post, at 4–5 ( Souter , J., dissenting); 202 F. 3d, at 509–511. Therefore, the argument goes, excluding the Club is not viewpoint discrimination. I disagree.

Respondent has opened its facilities to any “us[e] pertaining to the welfare of the community, provided that such us[e] shall be nonexclusive and shall be opened to the general public.” App. to Pet. for Cert. D1. Shaping the moral and character development of children certainly “pertain[s] to the welfare of the community.” Thus, respondent has agreed that groups engaged in the endeavor of developing character may use its forum. The Boy Scouts, for example, may seek “to influence a boy’s character, development and spiritual growth,” App. N10–N11; cf. Boy Scouts of America v. Dale, 530 U. S. 640, 649 (2000) (“[T]he general mission of the Boy Scouts is clear: ‘[t]o instill values in young people’ ” (quoting the Scouts’ mission statement)), and a group may use Aesop’s Fables to teach moral values, App. N11. When the Club attempted to teach Biblical-based moral values, however, it was excluded because its activities “d[id] not involve merely a religious perspective on the secular subject of morality” and because “it [was] clear from the conduct of the meetings that the Good News Club goes far beyond merely stating its viewpoint.” 202 F. 3d, at 510.

From no other group does respondent require the sterility of speech that it demands of petitioners. The Boy Scouts could undoubtedly buttress their exhortations to keep “morally straight” and live “clean” lives, see Boy Scouts of America v. Dale, supra, at 649, by giving reasons why that is a good idea—because parents want and expect it, because it will make the scouts “better” and “more successful” people, because it will emulate such admired past Scouts as former President Gerald Ford. The Club, however, may only discuss morals and character, and cannot give its reasons why they should be fostered—because God wants and expects it, because it will make the Club members “saintly” people, and because it emulates Jesus Christ. The Club may not, in other words, independently discuss the religious premise on which its views are based—that God exists and His assistance is necessary to morality. It may not defend the premise, and it absolutely must not seek to persuade the children that the premise is true. The children must, so to say, take it on faith. This is blatant viewpoint discrimination. Just as calls to character based on patriotism will go unanswered if the listeners do not believe their country is good and just, calls to moral behavior based on God’s will are useless if the listeners do not believe that God exists. Effectiveness in presenting a viewpoint rests on the persuasiveness with which the speaker defends his premise—and in respondent’s facilities every premise but a religious one may be defended.

In Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819 (1995) , we struck down a similar viewpoint restriction. There, a private student newspaper sought funding from a student-activity fund on the same basis as its secular counterparts. And though the paper printed such directly religious material as exhortations to belief, see id., at 826 (quoting the paper’s self-described mission “ ‘to encourage students to consider what a personal relationship with Jesus Christ means’ ”); id., at 865 ( Souter, J., dissenting) (“ ‘The only way to salvation through Him is by confessing and repenting of sin. It is the Christian’s duty to make sinners aware of their need for salvation’ ” (quoting the paper)); see also id., at 865–867 (quoting other examples), we held that refusing to provide the funds discriminated on the basis of viewpoint, because the religious speech had been used to “provid[e] … a specific premise … from which a variety of subjects may be discussed and considered,” id., at 831 (opinion of the Court). The right to present a viewpoint based on a religion premise carried with it the right to defend the premise.

The dissenters emphasize that the religious speech used by the Club as the foundation for its views on morals and character is not just any type of religious speech—although they cannot agree exactly what type of religious speech it is. In Justice Stevens ’ view, it is speech “aimed principally at proselytizing or inculcating belief in a particular religious faith,” post, at 1; see also post, at 5, n. 3. This does not, to begin with, distinguish Rosenberger, which also involved proselytizing speech, as the above quotations show. See also Rosenberger, supra, at 844 (referring approvingly to the dissent’s description of the paper as a “wor[k] characterized by … evangelism”). But in addition, it does not distinguish the Club’s activities from those of the other groups using respondent’s forum—which have not, as Justice Stevens suggests, see post, at 2–3, been restricted to roundtable “discussions” of moral issues. Those groups may seek to inculcate children with their beliefs, and they may furthermore “recruit others to join their respective groups,” post, at 3. The Club must therefore have liberty to do the same, even if, as Justice Stevens fears without support in the record, see post, at 3, its actions may prove (shudder!) divisive. See Lamb’s Chapel, 508 U. S., at 395 (remarking that worries about “public unrest” caused by “proselytizing” are “difficult to defend as a reason to deny the presentation of a religious point of view”); cf. Lynch v. Donnelly, 465 U. S. 668, 684–685 (1984) (holding that “political divisiveness” could not invalidate inclusion of crche in municipal Christmas display); Cantwell v. Connecticut, 310 U. S., at 310–311.

Justice Souter , while agreeing that the Club’s religious speech “may be characterized as proselytizing,” post, at 5, n. 3, thinks that it is even more clearly excludable from respondent’s forum because it is essentially “an evangelical service of worship,” post, at 5. But we have previously rejected the attempt to distinguish worship from other religious speech, saying that “the distinction has [no] intelligible content,” and further, no “ relevance ” to the constitutional issue. Widmar v. Vincent, 454 U. S. 263, n. 6 (1981); see also Murdock v. Pennsylvania, 319 U. S., at 109 (refusing to distinguish evangelism from worship). 3 Those holdings are surely proved correct today by the dissenters’ inability to agree, even between themselves, into which subcategory of religious speech the Club’s activities fell. If the distinction did have content, it would be beyond the courts’ competence to administer. Widmar v. Vincent, supra, at 269, n. 6; cf. Lee v. Weisman, 505 U. S. 577, 616–617 (1992) ( Souter , J., concurring) (“I can hardly imagine a subject less amenable to the competence of the federal judiciary, or more deliberately to be avoided where possible,” than “comparative theology”). And if courts (and other government officials) were competent, applying the distinction would require state monitoring of private, religious speech with a degree of pervasiveness that we have previously found unacceptable. See, e.g., Rosenberger v. Rector and Visitors of Univ. of Va., supra, at 844–845; Widmar v. Vincent, supra, at 269, n. 6. I will not endorse an approach that suffers such a wondrous diversity of flaws.

* * *

With these words of explanation, I join the opinion of the Court.


Notes

1 In this regard, I should note the inaccuracy of the Justice Souter’s claim that the reasonableness of the forum limitation is not properly before us, see post, at 2–3, and n. 1 (dissenting opinion). Petitioners argued, both in their papers filed in the District Court, Memorandum of Law in Support of Cross-Motion for Summary Judgment in No. 97-CV-0302 (NDNY), pp. 20–22, and in their brief filed on appeal, Brief for Appellants in No. 98–9494 (CA2), pp. 33–35, that respondent’s exclusion of them from the forum was unreasonable in light of the purposes served by the forum. Although the District Court did say in passing that the reasonableness of respondent’s general restriction on use of its facilities for religious purposes was not challenged, see 21 F. Supp.2d 147, 154 (NDNY 1998), the Court of Appeals apparently decided that the particular reasonableness challenge brought by petitioners had been preserved, because it addressed the argument on the merits, see 202 F. 3d 502, 509 (CA2 2000) (“Taking first the reasonableness criterion, the Club argues that the restriction is unreasonable … . This argument is foreclosed by precedent”).

2 Neither does the disagreement center on the mode of the Club’s speech—the fact that it sings songs and plays games. Although a forum could perhaps be opened to lectures but not plays, debates but not concerts, respondent has placed no such restrictions on the use of its facilities. See App. N8, N14, N19 (allowing seminars, concerts, and plays).

3 We have drawn a different distinction—between religious speech generally and speech about religion—but only with regard to restrictions the State must place on its own speech, where pervasive state monitoring is unproblematic. See School Dist. of Abington Township v. Schempp, 374 U. S. 203, 225 (1963) (State schools in their official capacity may not teach religion but may teach about religion). Whatever the rule there, licensing and monitoring private religious speech is an entirely different matter, see, e.g., Kunz v. New York, 340 U. S. 290, 293–294 (1951) , even in a limited public forum where the state has some authority to draw subject-matter distinctions.


TOP

Concurrence

GOOD NEWS CLUB, et al. , PETITIONERS v. MILFORD CENTRAL SCHOOL

on writ of certiorari to the united states court of appeals for the second circuit


[June 11, 2001]

Justice Scalia , concurring.

I join the Court’s opinion but write separately to explain further my views on two issues.

I

First, I join Part IV of the Court’s opinion, regarding the Establishment Clause issue, with the understanding that its consideration of coercive pressure, see ante, at 14, and perceptions of endorsement, see ante, at 14–15, 17–18, “to the extent” that the law makes such factors relevant, is consistent with the belief (which I hold) that in this case that extent is zero. As to coercive pressure: Physical coercion is not at issue here; and so-called “peer pressure,” if it can even been considered coercion, is, when it arises from private activities, one of the attendant consequences of a freedom of association that is constitutionally protected, see, e.g., Roberts v. United States Jaycees, 468 U. S. 609, 622 (1984) ; NAACP v. Alabama ex rel. Patterson, 357 U. S. 449, 460–461 (1958) . What is at play here is not coercion, but the compulsion of ideas—and the private right to exert and receive that compulsion (or to have one’s children receive it) is protected by the Free Speech and Free Exercise Clauses, see, e.g., Heffron v. International Soc. for Krishna Consciousness, Inc., 452 U. S. 640, 647 (1981) ; Murdock v. Pennsylvania, 319 U. S. 105, 108–109 (1943) ; Cantwell v. Connecticut, 310 U. S. 296, 307–310 (1940) , not banned by the Establishment Clause. A priest has as much liberty to proselytize as a patriot.

As to endorsement, I have previously written that “[r]eligious expression cannot violate the Establishment Clause where it (1) is purely private and (2) occurs in a traditional or designated public forum, publicly announced and open to all on equal terms.” Capitol Square Review and Advisory Bd. v. Pinette, 515 U. S. 753, 770 (1995) . The same is true of private speech that occurs in a limited public forum, publicly announced, whose boundaries are not drawn to favor religious groups but instead permit a cross-section of uses. In that context, which is this case, “erroneous conclusions [about endorsement] do not count.” Id., at 765. See also Lamb’s Chapel v. Center Moriches Union Free School Dist., 508 U. S. 384, 401 (1993) ( Scalia, J., concurring in judgment) (“I would hold, simply and clearly, that giving [a private religious group] nondiscriminatory access to school facilities cannot violate [the Establishment Clause] because it does not signify state or local embrace of a particular religious sect”).

II

Second, since we have rejected the only reason that respondent gave for excluding the Club’s speech from a forum that clearly included it (the forum was opened to any “us[e] pertaining to the welfare of the community,” App. to Pet. for Cert. D1), I do not suppose it matters whether the exclusion is characterized as viewpoint or subject-matter discrimination. Lacking any legitimate reason for excluding the Club’s speech from its forum—“because it’s religious” will not do, see, e.g., Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 532–533, 546 (1993) ; Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872, 877–878 (1990) —respondent would seem to fail First Amendment scrutiny regardless of how its action is characterized. Even subject-matter limits must at least be “reasonable in light of the purpose served by the forum,” Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U. S. 788, 806 (1985) . 1 But I agree, in any event, that respondent did discriminate on the basis of viewpoint.

As I understand it, the point of disagreement between the Court and the dissenters (and the Court of Appeals) with regard to petitioner’s Free Speech Clause claim is not whether the Good News Club must be permitted to present religious viewpoints on morals and character in respondent’s forum, which has been opened to secular discussions of that subject, see ante, at 7–8. 2 The answer to that is established by our decision in Lamb’s Chapel, supra. The point of disagreement is not even whether some of the Club’s religious speech fell within the protection of Lamb’s Chapel . It certainly did. See ante, at 8; 202 F. 3d 502, 509 (CA2 2000) (the Club’s “teachings may involve secular values such as obedience or resisting jealousy”).

The disagreement, rather, regards the portions of the Club’s meetings that are not “purely” “discussions” of morality and character from a religious viewpoint. The Club, for example, urges children “who already believe in the Lord Jesus as their Savior” to “[s]top and ask God for the strength and the ‘want’ … to obey Him,” 21 F. Supp.2d 147, 156 (NDNY 1998) (internal quotation marks omitted), and it invites children who “don’t know Jesus as Savior” to “trust the Lord Jesus to be [their] Savior from sin,” ibid. The dissenters and the Second Circuit say that the presence of such additional speech, because it is purely religious, transforms the Club’s meetings into something different in kind from other, nonreligious activities that teach moral and character development. See post, at 4–5 ( Stevens , J., dissenting); post, at 4–5 ( Souter , J., dissenting); 202 F. 3d, at 509–511. Therefore, the argument goes, excluding the Club is not viewpoint discrimination. I disagree.

Respondent has opened its facilities to any “us[e] pertaining to the welfare of the community, provided that such us[e] shall be nonexclusive and shall be opened to the general public.” App. to Pet. for Cert. D1. Shaping the moral and character development of children certainly “pertain[s] to the welfare of the community.” Thus, respondent has agreed that groups engaged in the endeavor of developing character may use its forum. The Boy Scouts, for example, may seek “to influence a boy’s character, development and spiritual growth,” App. N10–N11; cf. Boy Scouts of America v. Dale, 530 U. S. 640, 649 (2000) (“[T]he general mission of the Boy Scouts is clear: ‘[t]o instill values in young people’ ” (quoting the Scouts’ mission statement)), and a group may use Aesop’s Fables to teach moral values, App. N11. When the Club attempted to teach Biblical-based moral values, however, it was excluded because its activities “d[id] not involve merely a religious perspective on the secular subject of morality” and because “it [was] clear from the conduct of the meetings that the Good News Club goes far beyond merely stating its viewpoint.” 202 F. 3d, at 510.

From no other group does respondent require the sterility of speech that it demands of petitioners. The Boy Scouts could undoubtedly buttress their exhortations to keep “morally straight” and live “clean” lives, see Boy Scouts of America v. Dale, supra, at 649, by giving reasons why that is a good idea—because parents want and expect it, because it will make the scouts “better” and “more successful” people, because it will emulate such admired past Scouts as former President Gerald Ford. The Club, however, may only discuss morals and character, and cannot give its reasons why they should be fostered—because God wants and expects it, because it will make the Club members “saintly” people, and because it emulates Jesus Christ. The Club may not, in other words, independently discuss the religious premise on which its views are based—that God exists and His assistance is necessary to morality. It may not defend the premise, and it absolutely must not seek to persuade the children that the premise is true. The children must, so to say, take it on faith. This is blatant viewpoint discrimination. Just as calls to character based on patriotism will go unanswered if the listeners do not believe their country is good and just, calls to moral behavior based on God’s will are useless if the listeners do not believe that God exists. Effectiveness in presenting a viewpoint rests on the persuasiveness with which the speaker defends his premise—and in respondent’s facilities every premise but a religious one may be defended.

In Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819 (1995) , we struck down a similar viewpoint restriction. There, a private student newspaper sought funding from a student-activity fund on the same basis as its secular counterparts. And though the paper printed such directly religious material as exhortations to belief, see id., at 826 (quoting the paper’s self-described mission “ ‘to encourage students to consider what a personal relationship with Jesus Christ means’ ”); id., at 865 ( Souter, J., dissenting) (“ ‘The only way to salvation through Him is by confessing and repenting of sin. It is the Christian’s duty to make sinners aware of their need for salvation’ ” (quoting the paper)); see also id., at 865–867 (quoting other examples), we held that refusing to provide the funds discriminated on the basis of viewpoint, because the religious speech had been used to “provid[e] … a specific premise … from which a variety of subjects may be discussed and considered,” id., at 831 (opinion of the Court). The right to present a viewpoint based on a religion premise carried with it the right to defend the premise.

The dissenters emphasize that the religious speech used by the Club as the foundation for its views on morals and character is not just any type of religious speech—although they cannot agree exactly what type of religious speech it is. In Justice Stevens ’ view, it is speech “aimed principally at proselytizing or inculcating belief in a particular religious faith,” post, at 1; see also post, at 5, n. 3. This does not, to begin with, distinguish Rosenberger, which also involved proselytizing speech, as the above quotations show. See also Rosenberger, supra, at 844 (referring approvingly to the dissent’s description of the paper as a “wor[k] characterized by … evangelism”). But in addition, it does not distinguish the Club’s activities from those of the other groups using respondent’s forum—which have not, as Justice Stevens suggests, see post, at 2–3, been restricted to roundtable “discussions” of moral issues. Those groups may seek to inculcate children with their beliefs, and they may furthermore “recruit others to join their respective groups,” post, at 3. The Club must therefore have liberty to do the same, even if, as Justice Stevens fears without support in the record, see post, at 3, its actions may prove (shudder!) divisive. See Lamb’s Chapel, 508 U. S., at 395 (remarking that worries about “public unrest” caused by “proselytizing” are “difficult to defend as a reason to deny the presentation of a religious point of view”); cf. Lynch v. Donnelly, 465 U. S. 668, 684–685 (1984) (holding that “political divisiveness” could not invalidate inclusion of crche in municipal Christmas display); Cantwell v. Connecticut, 310 U. S., at 310–311.

Justice Souter , while agreeing that the Club’s religious speech “may be characterized as proselytizing,” post, at 5, n. 3, thinks that it is even more clearly excludable from respondent’s forum because it is essentially “an evangelical service of worship,” post, at 5. But we have previously rejected the attempt to distinguish worship from other religious speech, saying that “the distinction has [no] intelligible content,” and further, no “ relevance ” to the constitutional issue. Widmar v. Vincent, 454 U. S. 263, n. 6 (1981); see also Murdock v. Pennsylvania, 319 U. S., at 109 (refusing to distinguish evangelism from worship). 3 Those holdings are surely proved correct today by the dissenters’ inability to agree, even between themselves, into which subcategory of religious speech the Club’s activities fell. If the distinction did have content, it would be beyond the courts’ competence to administer. Widmar v. Vincent, supra, at 269, n. 6; cf. Lee v. Weisman, 505 U. S. 577, 616–617 (1992) ( Souter , J., concurring) (“I can hardly imagine a subject less amenable to the competence of the federal judiciary, or more deliberately to be avoided where possible,” than “comparative theology”). And if courts (and other government officials) were competent, applying the distinction would require state monitoring of private, religious speech with a degree of pervasiveness that we have previously found unacceptable. See, e.g., Rosenberger v. Rector and Visitors of Univ. of Va., supra, at 844–845; Widmar v. Vincent, supra, at 269, n. 6. I will not endorse an approach that suffers such a wondrous diversity of flaws.

* * *

With these words of explanation, I join the opinion of the Court.


Notes

1 In this regard, I should note the inaccuracy of the Justice Souter’s claim that the reasonableness of the forum limitation is not properly before us, see post, at 2–3, and n. 1 (dissenting opinion). Petitioners argued, both in their papers filed in the District Court, Memorandum of Law in Support of Cross-Motion for Summary Judgment in No. 97-CV-0302 (NDNY), pp. 20–22, and in their brief filed on appeal, Brief for Appellants in No. 98–9494 (CA2), pp. 33–35, that respondent’s exclusion of them from the forum was unreasonable in light of the purposes served by the forum. Although the District Court did say in passing that the reasonableness of respondent’s general restriction on use of its facilities for religious purposes was not challenged, see 21 F. Supp.2d 147, 154 (NDNY 1998), the Court of Appeals apparently decided that the particular reasonableness challenge brought by petitioners had been preserved, because it addressed the argument on the merits, see 202 F. 3d 502, 509 (CA2 2000) (“Taking first the reasonableness criterion, the Club argues that the restriction is unreasonable … . This argument is foreclosed by precedent”).

2 Neither does the disagreement center on the mode of the Club’s speech—the fact that it sings songs and plays games. Although a forum could perhaps be opened to lectures but not plays, debates but not concerts, respondent has placed no such restrictions on the use of its facilities. See App. N8, N14, N19 (allowing seminars, concerts, and plays).

3 We have drawn a different distinction—between religious speech generally and speech about religion—but only with regard to restrictions the State must place on its own speech, where pervasive state monitoring is unproblematic. See School Dist. of Abington Township v. Schempp, 374 U. S. 203, 225 (1963) (State schools in their official capacity may not teach religion but may teach about religion). Whatever the rule there, licensing and monitoring private religious speech is an entirely different matter, see, e.g., Kunz v. New York, 340 U. S. 290, 293–294 (1951) , even in a limited public forum where the state has some authority to draw subject-matter distinctions.


TOP

Concurrence

GOOD NEWS CLUB, et al. , PETITIONERS v. MILFORD CENTRAL SCHOOL

on writ of certiorari to the united states court of appeals for the second circuit


[June 11, 2001]

Justice Scalia , concurring.

I join the Court’s opinion but write separately to explain further my views on two issues.

I

First, I join Part IV of the Court’s opinion, regarding the Establishment Clause issue, with the understanding that its consideration of coercive pressure, see ante, at 14, and perceptions of endorsement, see ante, at 14–15, 17–18, “to the extent” that the law makes such factors relevant, is consistent with the belief (which I hold) that in this case that extent is zero. As to coercive pressure: Physical coercion is not at issue here; and so-called “peer pressure,” if it can even been considered coercion, is, when it arises from private activities, one of the attendant consequences of a freedom of association that is constitutionally protected, see, e.g., Roberts v. United States Jaycees, 468 U. S. 609, 622 (1984) ; NAACP v. Alabama ex rel. Patterson, 357 U. S. 449, 460–461 (1958) . What is at play here is not coercion, but the compulsion of ideas—and the private right to exert and receive that compulsion (or to have one’s children receive it) is protected by the Free Speech and Free Exercise Clauses, see, e.g., Heffron v. International Soc. for Krishna Consciousness, Inc., 452 U. S. 640, 647 (1981) ; Murdock v. Pennsylvania, 319 U. S. 105, 108–109 (1943) ; Cantwell v. Connecticut, 310 U. S. 296, 307–310 (1940) , not banned by the Establishment Clause. A priest has as much liberty to proselytize as a patriot.

As to endorsement, I have previously written that “[r]eligious expression cannot violate the Establishment Clause where it (1) is purely private and (2) occurs in a traditional or designated public forum, publicly announced and open to all on equal terms.” Capitol Square Review and Advisory Bd. v. Pinette, 515 U. S. 753, 770 (1995) . The same is true of private speech that occurs in a limited public forum, publicly announced, whose boundaries are not drawn to favor religious groups but instead permit a cross-section of uses. In that context, which is this case, “erroneous conclusions [about endorsement] do not count.” Id., at 765. See also Lamb’s Chapel v. Center Moriches Union Free School Dist., 508 U. S. 384, 401 (1993) ( Scalia, J., concurring in judgment) (“I would hold, simply and clearly, that giving [a private religious group] nondiscriminatory access to school facilities cannot violate [the Establishment Clause] because it does not signify state or local embrace of a particular religious sect”).

II

Second, since we have rejected the only reason that respondent gave for excluding the Club’s speech from a forum that clearly included it (the forum was opened to any “us[e] pertaining to the welfare of the community,” App. to Pet. for Cert. D1), I do not suppose it matters whether the exclusion is characterized as viewpoint or subject-matter discrimination. Lacking any legitimate reason for excluding the Club’s speech from its forum—“because it’s religious” will not do, see, e.g., Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 532–533, 546 (1993) ; Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872, 877–878 (1990) —respondent would seem to fail First Amendment scrutiny regardless of how its action is characterized. Even subject-matter limits must at least be “reasonable in light of the purpose served by the forum,” Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U. S. 788, 806 (1985) . 1 But I agree, in any event, that respondent did discriminate on the basis of viewpoint.

As I understand it, the point of disagreement between the Court and the dissenters (and the Court of Appeals) with regard to petitioner’s Free Speech Clause claim is not whether the Good News Club must be permitted to present religious viewpoints on morals and character in respondent’s forum, which has been opened to secular discussions of that subject, see ante, at 7–8. 2 The answer to that is established by our decision in Lamb’s Chapel, supra. The point of disagreement is not even whether some of the Club’s religious speech fell within the protection of Lamb’s Chapel . It certainly did. See ante, at 8; 202 F. 3d 502, 509 (CA2 2000) (the Club’s “teachings may involve secular values such as obedience or resisting jealousy”).

The disagreement, rather, regards the portions of the Club’s meetings that are not “purely” “discussions” of morality and character from a religious viewpoint. The Club, for example, urges children “who already believe in the Lord Jesus as their Savior” to “[s]top and ask God for the strength and the ‘want’ … to obey Him,” 21 F. Supp.2d 147, 156 (NDNY 1998) (internal quotation marks omitted), and it invites children who “don’t know Jesus as Savior” to “trust the Lord Jesus to be [their] Savior from sin,” ibid. The dissenters and the Second Circuit say that the presence of such additional speech, because it is purely religious, transforms the Club’s meetings into something different in kind from other, nonreligious activities that teach moral and character development. See post, at 4–5 ( Stevens , J., dissenting); post, at 4–5 ( Souter , J., dissenting); 202 F. 3d, at 509–511. Therefore, the argument goes, excluding the Club is not viewpoint discrimination. I disagree.

Respondent has opened its facilities to any “us[e] pertaining to the welfare of the community, provided that such us[e] shall be nonexclusive and shall be opened to the general public.” App. to Pet. for Cert. D1. Shaping the moral and character development of children certainly “pertain[s] to the welfare of the community.” Thus, respondent has agreed that groups engaged in the endeavor of developing character may use its forum. The Boy Scouts, for example, may seek “to influence a boy’s character, development and spiritual growth,” App. N10–N11; cf. Boy Scouts of America v. Dale, 530 U. S. 640, 649 (2000) (“[T]he general mission of the Boy Scouts is clear: ‘[t]o instill values in young people’ ” (quoting the Scouts’ mission statement)), and a group may use Aesop’s Fables to teach moral values, App. N11. When the Club attempted to teach Biblical-based moral values, however, it was excluded because its activities “d[id] not involve merely a religious perspective on the secular subject of morality” and because “it [was] clear from the conduct of the meetings that the Good News Club goes far beyond merely stating its viewpoint.” 202 F. 3d, at 510.

From no other group does respondent require the sterility of speech that it demands of petitioners. The Boy Scouts could undoubtedly buttress their exhortations to keep “morally straight” and live “clean” lives, see Boy Scouts of America v. Dale, supra, at 649, by giving reasons why that is a good idea—because parents want and expect it, because it will make the scouts “better” and “more successful” people, because it will emulate such admired past Scouts as former President Gerald Ford. The Club, however, may only discuss morals and character, and cannot give its reasons why they should be fostered—because God wants and expects it, because it will make the Club members “saintly” people, and because it emulates Jesus Christ. The Club may not, in other words, independently discuss the religious premise on which its views are based—that God exists and His assistance is necessary to morality. It may not defend the premise, and it absolutely must not seek to persuade the children that the premise is true. The children must, so to say, take it on faith. This is blatant viewpoint discrimination. Just as calls to character based on patriotism will go unanswered if the listeners do not believe their country is good and just, calls to moral behavior based on God’s will are useless if the listeners do not believe that God exists. Effectiveness in presenting a viewpoint rests on the persuasiveness with which the speaker defends his premise—and in respondent’s facilities every premise but a religious one may be defended.

In Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819 (1995) , we struck down a similar viewpoint restriction. There, a private student newspaper sought funding from a student-activity fund on the same basis as its secular counterparts. And though the paper printed such directly religious material as exhortations to belief, see id., at 826 (quoting the paper’s self-described mission “ ‘to encourage students to consider what a personal relationship with Jesus Christ means’ ”); id., at 865 ( Souter, J., dissenting) (“ ‘The only way to salvation through Him is by confessing and repenting of sin. It is the Christian’s duty to make sinners aware of their need for salvation’ ” (quoting the paper)); see also id., at 865–867 (quoting other examples), we held that refusing to provide the funds discriminated on the basis of viewpoint, because the religious speech had been used to “provid[e] … a specific premise … from which a variety of subjects may be discussed and considered,” id., at 831 (opinion of the Court). The right to present a viewpoint based on a religion premise carried with it the right to defend the premise.

The dissenters emphasize that the religious speech used by the Club as the foundation for its views on morals and character is not just any type of religious speech—although they cannot agree exactly what type of religious speech it is. In Justice Stevens ’ view, it is speech “aimed principally at proselytizing or inculcating belief in a particular religious faith,” post, at 1; see also post, at 5, n. 3. This does not, to begin with, distinguish Rosenberger, which also involved proselytizing speech, as the above quotations show. See also Rosenberger, supra, at 844 (referring approvingly to the dissent’s description of the paper as a “wor[k] characterized by … evangelism”). But in addition, it does not distinguish the Club’s activities from those of the other groups using respondent’s forum—which have not, as Justice Stevens suggests, see post, at 2–3, been restricted to roundtable “discussions” of moral issues. Those groups may seek to inculcate children with their beliefs, and they may furthermore “recruit others to join their respective groups,” post, at 3. The Club must therefore have liberty to do the same, even if, as Justice Stevens fears without support in the record, see post, at 3, its actions may prove (shudder!) divisive. See Lamb’s Chapel, 508 U. S., at 395 (remarking that worries about “public unrest” caused by “proselytizing” are “difficult to defend as a reason to deny the presentation of a religious point of view”); cf. Lynch v. Donnelly, 465 U. S. 668, 684–685 (1984) (holding that “political divisiveness” could not invalidate inclusion of crche in municipal Christmas display); Cantwell v. Connecticut, 310 U. S., at 310–311.

Justice Souter , while agreeing that the Club’s religious speech “may be characterized as proselytizing,” post, at 5, n. 3, thinks that it is even more clearly excludable from respondent’s forum because it is essentially “an evangelical service of worship,” post, at 5. But we have previously rejected the attempt to distinguish worship from other religious speech, saying that “the distinction has [no] intelligible content,” and further, no “ relevance ” to the constitutional issue. Widmar v. Vincent, 454 U. S. 263, n. 6 (1981); see also Murdock v. Pennsylvania, 319 U. S., at 109 (refusing to distinguish evangelism from worship). 3 Those holdings are surely proved correct today by the dissenters’ inability to agree, even between themselves, into which subcategory of religious speech the Club’s activities fell. If the distinction did have content, it would be beyond the courts’ competence to administer. Widmar v. Vincent, supra, at 269, n. 6; cf. Lee v. Weisman, 505 U. S. 577, 616–617 (1992) ( Souter , J., concurring) (“I can hardly imagine a subject less amenable to the competence of the federal judiciary, or more deliberately to be avoided where possible,” than “comparative theology”). And if courts (and other government officials) were competent, applying the distinction would require state monitoring of private, religious speech with a degree of pervasiveness that we have previously found unacceptable. See, e.g., Rosenberger v. Rector and Visitors of Univ. of Va., supra, at 844–845; Widmar v. Vincent, supra, at 269, n. 6. I will not endorse an approach that suffers such a wondrous diversity of flaws.

* * *

With these words of explanation, I join the opinion of the Court.


Notes

1 In this regard, I should note the inaccuracy of the Justice Souter’s claim that the reasonableness of the forum limitation is not properly before us, see post, at 2–3, and n. 1 (dissenting opinion). Petitioners argued, both in their papers filed in the District Court, Memorandum of Law in Support of Cross-Motion for Summary Judgment in No. 97-CV-0302 (NDNY), pp. 20–22, and in their brief filed on appeal, Brief for Appellants in No. 98–9494 (CA2), pp. 33–35, that respondent’s exclusion of them from the forum was unreasonable in light of the purposes served by the forum. Although the District Court did say in passing that the reasonableness of respondent’s general restriction on use of its facilities for religious purposes was not challenged, see 21 F. Supp.2d 147, 154 (NDNY 1998), the Court of Appeals apparently decided that the particular reasonableness challenge brought by petitioners had been preserved, because it addressed the argument on the merits, see 202 F. 3d 502, 509 (CA2 2000) (“Taking first the reasonableness criterion, the Club argues that the restriction is unreasonable … . This argument is foreclosed by precedent”).

2 Neither does the disagreement center on the mode of the Club’s speech—the fact that it sings songs and plays games. Although a forum could perhaps be opened to lectures but not plays, debates but not concerts, respondent has placed no such restrictions on the use of its facilities. See App. N8, N14, N19 (allowing seminars, concerts, and plays).

3 We have drawn a different distinction—between religious speech generally and speech about religion—but only with regard to restrictions the State must place on its own speech, where pervasive state monitoring is unproblematic. See School Dist. of Abington Township v. Schempp, 374 U. S. 203, 225 (1963) (State schools in their official capacity may not teach religion but may teach about religion). Whatever the rule there, licensing and monitoring private religious speech is an entirely different matter, see, e.g., Kunz v. New York, 340 U. S. 290, 293–294 (1951) , even in a limited public forum where the state has some authority to draw subject-matter distinctions.


TOP

Concurrence

GOOD NEWS CLUB, et al. , PETITIONERS v. MILFORD CENTRAL SCHOOL

on writ of certiorari to the united states court of appeals for the second circuit


[June 11, 2001]

Justice Scalia , concurring.

I join the Court’s opinion but write separately to explain further my views on two issues.

I

First, I join Part IV of the Court’s opinion, regarding the Establishment Clause issue, with the understanding that its consideration of coercive pressure, see ante, at 14, and perceptions of endorsement, see ante, at 14–15, 17–18, “to the extent” that the law makes such factors relevant, is consistent with the belief (which I hold) that in this case that extent is zero. As to coercive pressure: Physical coercion is not at issue here; and so-called “peer pressure,” if it can even been considered coercion, is, when it arises from private activities, one of the attendant consequences of a freedom of association that is constitutionally protected, see, e.g., Roberts v. United States Jaycees, 468 U. S. 609, 622 (1984) ; NAACP v. Alabama ex rel. Patterson, 357 U. S. 449, 460–461 (1958) . What is at play here is not coercion, but the compulsion of ideas—and the private right to exert and receive that compulsion (or to have one’s children receive it) is protected by the Free Speech and Free Exercise Clauses, see, e.g., Heffron v. International Soc. for Krishna Consciousness, Inc., 452 U. S. 640, 647 (1981) ; Murdock v. Pennsylvania, 319 U. S. 105, 108–109 (1943) ; Cantwell v. Connecticut, 310 U. S. 296, 307–310 (1940) , not banned by the Establishment Clause. A priest has as much liberty to proselytize as a patriot.

As to endorsement, I have previously written that “[r]eligious expression cannot violate the Establishment Clause where it (1) is purely private and (2) occurs in a traditional or designated public forum, publicly announced and open to all on equal terms.” Capitol Square Review and Advisory Bd. v. Pinette, 515 U. S. 753, 770 (1995) . The same is true of private speech that occurs in a limited public forum, publicly announced, whose boundaries are not drawn to favor religious groups but instead permit a cross-section of uses. In that context, which is this case, “erroneous conclusions [about endorsement] do not count.” Id., at 765. See also Lamb’s Chapel v. Center Moriches Union Free School Dist., 508 U. S. 384, 401 (1993) ( Scalia, J., concurring in judgment) (“I would hold, simply and clearly, that giving [a private religious group] nondiscriminatory access to school facilities cannot violate [the Establishment Clause] because it does not signify state or local embrace of a particular religious sect”).

II

Second, since we have rejected the only reason that respondent gave for excluding the Club’s speech from a forum that clearly included it (the forum was opened to any “us[e] pertaining to the welfare of the community,” App. to Pet. for Cert. D1), I do not suppose it matters whether the exclusion is characterized as viewpoint or subject-matter discrimination. Lacking any legitimate reason for excluding the Club’s speech from its forum—“because it’s religious” will not do, see, e.g., Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 532–533, 546 (1993) ; Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872, 877–878 (1990) —respondent would seem to fail First Amendment scrutiny regardless of how its action is characterized. Even subject-matter limits must at least be “reasonable in light of the purpose served by the forum,” Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U. S. 788, 806 (1985) . 1 But I agree, in any event, that respondent did discriminate on the basis of viewpoint.

As I understand it, the point of disagreement between the Court and the dissenters (and the Court of Appeals) with regard to petitioner’s Free Speech Clause claim is not whether the Good News Club must be permitted to present religious viewpoints on morals and character in respondent’s forum, which has been opened to secular discussions of that subject, see ante, at 7–8. 2 The answer to that is established by our decision in Lamb’s Chapel, supra. The point of disagreement is not even whether some of the Club’s religious speech fell within the protection of Lamb’s Chapel . It certainly did. See ante, at 8; 202 F. 3d 502, 509 (CA2 2000) (the Club’s “teachings may involve secular values such as obedience or resisting jealousy”).

The disagreement, rather, regards the portions of the Club’s meetings that are not “purely” “discussions” of morality and character from a religious viewpoint. The Club, for example, urges children “who already believe in the Lord Jesus as their Savior” to “[s]top and ask God for the strength and the ‘want’ … to obey Him,” 21 F. Supp.2d 147, 156 (NDNY 1998) (internal quotation marks omitted), and it invites children who “don’t know Jesus as Savior” to “trust the Lord Jesus to be [their] Savior from sin,” ibid. The dissenters and the Second Circuit say that the presence of such additional speech, because it is purely religious, transforms the Club’s meetings into something different in kind from other, nonreligious activities that teach moral and character development. See post, at 4–5 ( Stevens , J., dissenting); post, at 4–5 ( Souter , J., dissenting); 202 F. 3d, at 509–511. Therefore, the argument goes, excluding the Club is not viewpoint discrimination. I disagree.

Respondent has opened its facilities to any “us[e] pertaining to the welfare of the community, provided that such us[e] shall be nonexclusive and shall be opened to the general public.” App. to Pet. for Cert. D1. Shaping the moral and character development of children certainly “pertain[s] to the welfare of the community.” Thus, respondent has agreed that groups engaged in the endeavor of developing character may use its forum. The Boy Scouts, for example, may seek “to influence a boy’s character, development and spiritual growth,” App. N10–N11; cf. Boy Scouts of America v. Dale, 530 U. S. 640, 649 (2000) (“[T]he general mission of the Boy Scouts is clear: ‘[t]o instill values in young people’ ” (quoting the Scouts’ mission statement)), and a group may use Aesop’s Fables to teach moral values, App. N11. When the Club attempted to teach Biblical-based moral values, however, it was excluded because its activities “d[id] not involve merely a religious perspective on the secular subject of morality” and because “it [was] clear from the conduct of the meetings that the Good News Club goes far beyond merely stating its viewpoint.” 202 F. 3d, at 510.

From no other group does respondent require the sterility of speech that it demands of petitioners. The Boy Scouts could undoubtedly buttress their exhortations to keep “morally straight” and live “clean” lives, see Boy Scouts of America v. Dale, supra, at 649, by giving reasons why that is a good idea—because parents want and expect it, because it will make the scouts “better” and “more successful” people, because it will emulate such admired past Scouts as former President Gerald Ford. The Club, however, may only discuss morals and character, and cannot give its reasons why they should be fostered—because God wants and expects it, because it will make the Club members “saintly” people, and because it emulates Jesus Christ. The Club may not, in other words, independently discuss the religious premise on which its views are based—that God exists and His assistance is necessary to morality. It may not defend the premise, and it absolutely must not seek to persuade the children that the premise is true. The children must, so to say, take it on faith. This is blatant viewpoint discrimination. Just as calls to character based on patriotism will go unanswered if the listeners do not believe their country is good and just, calls to moral behavior based on God’s will are useless if the listeners do not believe that God exists. Effectiveness in presenting a viewpoint rests on the persuasiveness with which the speaker defends his premise—and in respondent’s facilities every premise but a religious one may be defended.

In Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819 (1995) , we struck down a similar viewpoint restriction. There, a private student newspaper sought funding from a student-activity fund on the same basis as its secular counterparts. And though the paper printed such directly religious material as exhortations to belief, see id., at 826 (quoting the paper’s self-described mission “ ‘to encourage students to consider what a personal relationship with Jesus Christ means’ ”); id., at 865 ( Souter, J., dissenting) (“ ‘The only way to salvation through Him is by confessing and repenting of sin. It is the Christian’s duty to make sinners aware of their need for salvation’ ” (quoting the paper)); see also id., at 865–867 (quoting other examples), we held that refusing to provide the funds discriminated on the basis of viewpoint, because the religious speech had been used to “provid[e] … a specific premise … from which a variety of subjects may be discussed and considered,” id., at 831 (opinion of the Court). The right to present a viewpoint based on a religion premise carried with it the right to defend the premise.

The dissenters emphasize that the religious speech used by the Club as the foundation for its views on morals and character is not just any type of religious speech—although they cannot agree exactly what type of religious speech it is. In Justice Stevens ’ view, it is speech “aimed principally at proselytizing or inculcating belief in a particular religious faith,” post, at 1; see also post, at 5, n. 3. This does not, to begin with, distinguish Rosenberger, which also involved proselytizing speech, as the above quotations show. See also Rosenberger, supra, at 844 (referring approvingly to the dissent’s description of the paper as a “wor[k] characterized by … evangelism”). But in addition, it does not distinguish the Club’s activities from those of the other groups using respondent’s forum—which have not, as Justice Stevens suggests, see post, at 2–3, been restricted to roundtable “discussions” of moral issues. Those groups may seek to inculcate children with their beliefs, and they may furthermore “recruit others to join their respective groups,” post, at 3. The Club must therefore have liberty to do the same, even if, as Justice Stevens fears without support in the record, see post, at 3, its actions may prove (shudder!) divisive. See Lamb’s Chapel, 508 U. S., at 395 (remarking that worries about “public unrest” caused by “proselytizing” are “difficult to defend as a reason to deny the presentation of a religious point of view”); cf. Lynch v. Donnelly, 465 U. S. 668, 684–685 (1984) (holding that “political divisiveness” could not invalidate inclusion of crche in municipal Christmas display); Cantwell v. Connecticut, 310 U. S., at 310–311.

Justice Souter , while agreeing that the Club’s religious speech “may be characterized as proselytizing,” post, at 5, n. 3, thinks that it is even more clearly excludable from respondent’s forum because it is essentially “an evangelical service of worship,” post, at 5. But we have previously rejected the attempt to distinguish worship from other religious speech, saying that “the distinction has [no] intelligible content,” and further, no “ relevance ” to the constitutional issue. Widmar v. Vincent, 454 U. S. 263, n. 6 (1981); see also Murdock v. Pennsylvania, 319 U. S., at 109 (refusing to distinguish evangelism from worship). 3 Those holdings are surely proved correct today by the dissenters’ inability to agree, even between themselves, into which subcategory of religious speech the Club’s activities fell. If the distinction did have content, it would be beyond the courts’ competence to administer. Widmar v. Vincent, supra, at 269, n. 6; cf. Lee v. Weisman, 505 U. S. 577, 616–617 (1992) ( Souter , J., concurring) (“I can hardly imagine a subject less amenable to the competence of the federal judiciary, or more deliberately to be avoided where possible,” than “comparative theology”). And if courts (and other government officials) were competent, applying the distinction would require state monitoring of private, religious speech with a degree of pervasiveness that we have previously found unacceptable. See, e.g., Rosenberger v. Rector and Visitors of Univ. of Va., supra, at 844–845; Widmar v. Vincent, supra, at 269, n. 6. I will not endorse an approach that suffers such a wondrous diversity of flaws.

* * *

With these words of explanation, I join the opinion of the Court.


Notes

1 In this regard, I should note the inaccuracy of the Justice Souter’s claim that the reasonableness of the forum limitation is not properly before us, see post, at 2–3, and n. 1 (dissenting opinion). Petitioners argued, both in their papers filed in the District Court, Memorandum of Law in Support of Cross-Motion for Summary Judgment in No. 97-CV-0302 (NDNY), pp. 20–22, and in their brief filed on appeal, Brief for Appellants in No. 98–9494 (CA2), pp. 33–35, that respondent’s exclusion of them from the forum was unreasonable in light of the purposes served by the forum. Although the District Court did say in passing that the reasonableness of respondent’s general restriction on use of its facilities for religious purposes was not challenged, see 21 F. Supp.2d 147, 154 (NDNY 1998), the Court of Appeals apparently decided that the particular reasonableness challenge brought by petitioners had been preserved, because it addressed the argument on the merits, see 202 F. 3d 502, 509 (CA2 2000) (“Taking first the reasonableness criterion, the Club argues that the restriction is unreasonable … . This argument is foreclosed by precedent”).

2 Neither does the disagreement center on the mode of the Club’s speech—the fact that it sings songs and plays games. Although a forum could perhaps be opened to lectures but not plays, debates but not concerts, respondent has placed no such restrictions on the use of its facilities. See App. N8, N14, N19 (allowing seminars, concerts, and plays).

3 We have drawn a different distinction—between religious speech generally and speech about religion—but only with regard to restrictions the State must place on its own speech, where pervasive state monitoring is unproblematic. See School Dist. of Abington Township v. Schempp, 374 U. S. 203, 225 (1963) (State schools in their official capacity may not teach religion but may teach about religion). Whatever the rule there, licensing and monitoring private religious speech is an entirely different matter, see, e.g., Kunz v. New York, 340 U. S. 290, 293–294 (1951) , even in a limited public forum where the state has some authority to draw subject-matter distinctions.


TOP

Concurrence

GOOD NEWS CLUB, et al. , PETITIONERS v. MILFORD CENTRAL SCHOOL

on writ of certiorari to the united states court of appeals for the second circuit


[June 11, 2001]

Justice Scalia , concurring.

I join the Court’s opinion but write separately to explain further my views on two issues.

I

First, I join Part IV of the Court’s opinion, regarding the Establishment Clause issue, with the understanding that its consideration of coercive pressure, see ante, at 14, and perceptions of endorsement, see ante, at 14–15, 17–18, “to the extent” that the law makes such factors relevant, is consistent with the belief (which I hold) that in this case that extent is zero. As to coercive pressure: Physical coercion is not at issue here; and so-called “peer pressure,” if it can even been considered coercion, is, when it arises from private activities, one of the attendant consequences of a freedom of association that is constitutionally protected, see, e.g., Roberts v. United States Jaycees, 468 U. S. 609, 622 (1984) ; NAACP v. Alabama ex rel. Patterson, 357 U. S. 449, 460–461 (1958) . What is at play here is not coercion, but the compulsion of ideas—and the private right to exert and receive that compulsion (or to have one’s children receive it) is protected by the Free Speech and Free Exercise Clauses, see, e.g., Heffron v. International Soc. for Krishna Consciousness, Inc., 452 U. S. 640, 647 (1981) ; Murdock v. Pennsylvania, 319 U. S. 105, 108–109 (1943) ; Cantwell v. Connecticut, 310 U. S. 296, 307–310 (1940) , not banned by the Establishment Clause. A priest has as much liberty to proselytize as a patriot.

As to endorsement, I have previously written that “[r]eligious expression cannot violate the Establishment Clause where it (1) is purely private and (2) occurs in a traditional or designated public forum, publicly announced and open to all on equal terms.” Capitol Square Review and Advisory Bd. v. Pinette, 515 U. S. 753, 770 (1995) . The same is true of private speech that occurs in a limited public forum, publicly announced, whose boundaries are not drawn to favor religious groups but instead permit a cross-section of uses. In that context, which is this case, “erroneous conclusions [about endorsement] do not count.” Id., at 765. See also Lamb’s Chapel v. Center Moriches Union Free School Dist., 508 U. S. 384, 401 (1993) ( Scalia, J., concurring in judgment) (“I would hold, simply and clearly, that giving [a private religious group] nondiscriminatory access to school facilities cannot violate [the Establishment Clause] because it does not signify state or local embrace of a particular religious sect”).

II

Second, since we have rejected the only reason that respondent gave for excluding the Club’s speech from a forum that clearly included it (the forum was opened to any “us[e] pertaining to the welfare of the community,” App. to Pet. for Cert. D1), I do not suppose it matters whether the exclusion is characterized as viewpoint or subject-matter discrimination. Lacking any legitimate reason for excluding the Club’s speech from its forum—“because it’s religious” will not do, see, e.g., Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 532–533, 546 (1993) ; Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872, 877–878 (1990) —respondent would seem to fail First Amendment scrutiny regardless of how its action is characterized. Even subject-matter limits must at least be “reasonable in light of the purpose served by the forum,” Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U. S. 788, 806 (1985) . 1 But I agree, in any event, that respondent did discriminate on the basis of viewpoint.

As I understand it, the point of disagreement between the Court and the dissenters (and the Court of Appeals) with regard to petitioner’s Free Speech Clause claim is not whether the Good News Club must be permitted to present religious viewpoints on morals and character in respondent’s forum, which has been opened to secular discussions of that subject, see ante, at 7–8. 2 The answer to that is established by our decision in Lamb’s Chapel, supra. The point of disagreement is not even whether some of the Club’s religious speech fell within the protection of Lamb’s Chapel . It certainly did. See ante, at 8; 202 F. 3d 502, 509 (CA2 2000) (the Club’s “teachings may involve secular values such as obedience or resisting jealousy”).

The disagreement, rather, regards the portions of the Club’s meetings that are not “purely” “discussions” of morality and character from a religious viewpoint. The Club, for example, urges children “who already believe in the Lord Jesus as their Savior” to “[s]top and ask God for the strength and the ‘want’ … to obey Him,” 21 F. Supp.2d 147, 156 (NDNY 1998) (internal quotation marks omitted), and it invites children who “don’t know Jesus as Savior” to “trust the Lord Jesus to be [their] Savior from sin,” ibid. The dissenters and the Second Circuit say that the presence of such additional speech, because it is purely religious, transforms the Club’s meetings into something different in kind from other, nonreligious activities that teach moral and character development. See post, at 4–5 ( Stevens , J., dissenting); post, at 4–5 ( Souter , J., dissenting); 202 F. 3d, at 509–511. Therefore, the argument goes, excluding the Club is not viewpoint discrimination. I disagree.

Respondent has opened its facilities to any “us[e] pertaining to the welfare of the community, provided that such us[e] shall be nonexclusive and shall be opened to the general public.” App. to Pet. for Cert. D1. Shaping the moral and character development of children certainly “pertain[s] to the welfare of the community.” Thus, respondent has agreed that groups engaged in the endeavor of developing character may use its forum. The Boy Scouts, for example, may seek “to influence a boy’s character, development and spiritual growth,” App. N10–N11; cf. Boy Scouts of America v. Dale, 530 U. S. 640, 649 (2000) (“[T]he general mission of the Boy Scouts is clear: ‘[t]o instill values in young people’ ” (quoting the Scouts’ mission statement)), and a group may use Aesop’s Fables to teach moral values, App. N11. When the Club attempted to teach Biblical-based moral values, however, it was excluded because its activities “d[id] not involve merely a religious perspective on the secular subject of morality” and because “it [was] clear from the conduct of the meetings that the Good News Club goes far beyond merely stating its viewpoint.” 202 F. 3d, at 510.

From no other group does respondent require the sterility of speech that it demands of petitioners. The Boy Scouts could undoubtedly buttress their exhortations to keep “morally straight” and live “clean” lives, see Boy Scouts of America v. Dale, supra, at 649, by giving reasons why that is a good idea—because parents want and expect it, because it will make the scouts “better” and “more successful” people, because it will emulate such admired past Scouts as former President Gerald Ford. The Club, however, may only discuss morals and character, and cannot give its reasons why they should be fostered—because God wants and expects it, because it will make the Club members “saintly” people, and because it emulates Jesus Christ. The Club may not, in other words, independently discuss the religious premise on which its views are based—that God exists and His assistance is necessary to morality. It may not defend the premise, and it absolutely must not seek to persuade the children that the premise is true. The children must, so to say, take it on faith. This is blatant viewpoint discrimination. Just as calls to character based on patriotism will go unanswered if the listeners do not believe their country is good and just, calls to moral behavior based on God’s will are useless if the listeners do not believe that God exists. Effectiveness in presenting a viewpoint rests on the persuasiveness with which the speaker defends his premise—and in respondent’s facilities every premise but a religious one may be defended.

In Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819 (1995) , we struck down a similar viewpoint restriction. There, a private student newspaper sought funding from a student-activity fund on the same basis as its secular counterparts. And though the paper printed such directly religious material as exhortations to belief, see id., at 826 (quoting the paper’s self-described mission “ ‘to encourage students to consider what a personal relationship with Jesus Christ means’ ”); id., at 865 ( Souter, J., dissenting) (“ ‘The only way to salvation through Him is by confessing and repenting of sin. It is the Christian’s duty to make sinners aware of their need for salvation’ ” (quoting the paper)); see also id., at 865–867 (quoting other examples), we held that refusing to provide the funds discriminated on the basis of viewpoint, because the religious speech had been used to “provid[e] … a specific premise … from which a variety of subjects may be discussed and considered,” id., at 831 (opinion of the Court). The right to present a viewpoint based on a religion premise carried with it the right to defend the premise.

The dissenters emphasize that the religious speech used by the Club as the foundation for its views on morals and character is not just any type of religious speech—although they cannot agree exactly what type of religious speech it is. In Justice Stevens ’ view, it is speech “aimed principally at proselytizing or inculcating belief in a particular religious faith,” post, at 1; see also post, at 5, n. 3. This does not, to begin with, distinguish Rosenberger, which also involved proselytizing speech, as the above quotations show. See also Rosenberger, supra, at 844 (referring approvingly to the dissent’s description of the paper as a “wor[k] characterized by … evangelism”). But in addition, it does not distinguish the Club’s activities from those of the other groups using respondent’s forum—which have not, as Justice Stevens suggests, see post, at 2–3, been restricted to roundtable “discussions” of moral issues. Those groups may seek to inculcate children with their beliefs, and they may furthermore “recruit others to join their respective groups,” post, at 3. The Club must therefore have liberty to do the same, even if, as Justice Stevens fears without support in the record, see post, at 3, its actions may prove (shudder!) divisive. See Lamb’s Chapel, 508 U. S., at 395 (remarking that worries about “public unrest” caused by “proselytizing” are “difficult to defend as a reason to deny the presentation of a religious point of view”); cf. Lynch v. Donnelly, 465 U. S. 668, 684–685 (1984) (holding that “political divisiveness” could not invalidate inclusion of crche in municipal Christmas display); Cantwell v. Connecticut, 310 U. S., at 310–311.

Justice Souter , while agreeing that the Club’s religious speech “may be characterized as proselytizing,” post, at 5, n. 3, thinks that it is even more clearly excludable from respondent’s forum because it is essentially “an evangelical service of worship,” post, at 5. But we have previously rejected the attempt to distinguish worship from other religious speech, saying that “the distinction has [no] intelligible content,” and further, no “ relevance ” to the constitutional issue. Widmar v. Vincent, 454 U. S. 263, n. 6 (1981); see also Murdock v. Pennsylvania, 319 U. S., at 109 (refusing to distinguish evangelism from worship). 3 Those holdings are surely proved correct today by the dissenters’ inability to agree, even between themselves, into which subcategory of religious speech the Club’s activities fell. If the distinction did have content, it would be beyond the courts’ competence to administer. Widmar v. Vincent, supra, at 269, n. 6; cf. Lee v. Weisman, 505 U. S. 577, 616–617 (1992) ( Souter , J., concurring) (“I can hardly imagine a subject less amenable to the competence of the federal judiciary, or more deliberately to be avoided where possible,” than “comparative theology”). And if courts (and other government officials) were competent, applying the distinction would require state monitoring of private, religious speech with a degree of pervasiveness that we have previously found unacceptable. See, e.g., Rosenberger v. Rector and Visitors of Univ. of Va., supra, at 844–845; Widmar v. Vincent, supra, at 269, n. 6. I will not endorse an approach that suffers such a wondrous diversity of flaws.

* * *

With these words of explanation, I join the opinion of the Court.


Notes

1 In this regard, I should note the inaccuracy of the Justice Souter’s claim that the reasonableness of the forum limitation is not properly before us, see post, at 2–3, and n. 1 (dissenting opinion). Petitioners argued, both in their papers filed in the District Court, Memorandum of Law in Support of Cross-Motion for Summary Judgment in No. 97-CV-0302 (NDNY), pp. 20–22, and in their brief filed on appeal, Brief for Appellants in No. 98–9494 (CA2), pp. 33–35, that respondent’s exclusion of them from the forum was unreasonable in light of the purposes served by the forum. Although the District Court did say in passing that the reasonableness of respondent’s general restriction on use of its facilities for religious purposes was not challenged, see 21 F. Supp.2d 147, 154 (NDNY 1998), the Court of Appeals apparently decided that the particular reasonableness challenge brought by petitioners had been preserved, because it addressed the argument on the merits, see 202 F. 3d 502, 509 (CA2 2000) (“Taking first the reasonableness criterion, the Club argues that the restriction is unreasonable … . This argument is foreclosed by precedent”).

2 Neither does the disagreement center on the mode of the Club’s speech—the fact that it sings songs and plays games. Although a forum could perhaps be opened to lectures but not plays, debates but not concerts, respondent has placed no such restrictions on the use of its facilities. See App. N8, N14, N19 (allowing seminars, concerts, and plays).

3 We have drawn a different distinction—between religious speech generally and speech about religion—but only with regard to restrictions the State must place on its own speech, where pervasive state monitoring is unproblematic. See School Dist. of Abington Township v. Schempp, 374 U. S. 203, 225 (1963) (State schools in their official capacity may not teach religion but may teach about religion). Whatever the rule there, licensing and monitoring private religious speech is an entirely different matter, see, e.g., Kunz v. New York, 340 U. S. 290, 293–294 (1951) , even in a limited public forum where the state has some authority to draw subject-matter distinctions.


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Concurrence

GOOD NEWS CLUB, et al. , PETITIONERS v. MILFORD CENTRAL SCHOOL

on writ of certiorari to the united states court of appeals for the second circuit


[June 11, 2001]

Justice Scalia , concurring.

I join the Court’s opinion but write separately to explain further my views on two issues.

I

First, I join Part IV of the Court’s opinion, regarding the Establishment Clause issue, with the understanding that its consideration of coercive pressure, see ante, at 14, and perceptions of endorsement, see ante, at 14–15, 17–18, “to the extent” that the law makes such factors relevant, is consistent with the belief (which I hold) that in this case that extent is zero. As to coercive pressure: Physical coercion is not at issue here; and so-called “peer pressure,” if it can even been considered coercion, is, when it arises from private activities, one of the attendant consequences of a freedom of association that is constitutionally protected, see, e.g., Roberts v. United States Jaycees, 468 U. S. 609, 622 (1984) ; NAACP v. Alabama ex rel. Patterson, 357 U. S. 449, 460–461 (1958) . What is at play here is not coercion, but the compulsion of ideas—and the private right to exert and receive that compulsion (or to have one’s children receive it) is protected by the Free Speech and Free Exercise Clauses, see, e.g., Heffron v. International Soc. for Krishna Consciousness, Inc., 452 U. S. 640, 647 (1981) ; Murdock v. Pennsylvania, 319 U. S. 105, 108–109 (1943) ; Cantwell v. Connecticut, 310 U. S. 296, 307–310 (1940) , not banned by the Establishment Clause. A priest has as much liberty to proselytize as a patriot.

As to endorsement, I have previously written that “[r]eligious expression cannot violate the Establishment Clause where it (1) is purely private and (2) occurs in a traditional or designated public forum, publicly announced and open to all on equal terms.” Capitol Square Review and Advisory Bd. v. Pinette, 515 U. S. 753, 770 (1995) . The same is true of private speech that occurs in a limited public forum, publicly announced, whose boundaries are not drawn to favor religious groups but instead permit a cross-section of uses. In that context, which is this case, “erroneous conclusions [about endorsement] do not count.” Id., at 765. See also Lamb’s Chapel v. Center Moriches Union Free School Dist., 508 U. S. 384, 401 (1993) ( Scalia, J., concurring in judgment) (“I would hold, simply and clearly, that giving [a private religious group] nondiscriminatory access to school facilities cannot violate [the Establishment Clause] because it does not signify state or local embrace of a particular religious sect”).

II

Second, since we have rejected the only reason that respondent gave for excluding the Club’s speech from a forum that clearly included it (the forum was opened to any “us[e] pertaining to the welfare of the community,” App. to Pet. for Cert. D1), I do not suppose it matters whether the exclusion is characterized as viewpoint or subject-matter discrimination. Lacking any legitimate reason for excluding the Club’s speech from its forum—“because it’s religious” will not do, see, e.g., Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 532–533, 546 (1993) ; Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872, 877–878 (1990) —respondent would seem to fail First Amendment scrutiny regardless of how its action is characterized. Even subject-matter limits must at least be “reasonable in light of the purpose served by the forum,” Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U. S. 788, 806 (1985) . 1 But I agree, in any event, that respondent did discriminate on the basis of viewpoint.

As I understand it, the point of disagreement between the Court and the dissenters (and the Court of Appeals) with regard to petitioner’s Free Speech Clause claim is not whether the Good News Club must be permitted to present religious viewpoints on morals and character in respondent’s forum, which has been opened to secular discussions of that subject, see ante, at 7–8. 2 The answer to that is established by our decision in Lamb’s Chapel, supra. The point of disagreement is not even whether some of the Club’s religious speech fell within the protection of Lamb’s Chapel . It certainly did. See ante, at 8; 202 F. 3d 502, 509 (CA2 2000) (the Club’s “teachings may involve secular values such as obedience or resisting jealousy”).

The disagreement, rather, regards the portions of the Club’s meetings that are not “purely” “discussions” of morality and character from a religious viewpoint. The Club, for example, urges children “who already believe in the Lord Jesus as their Savior” to “[s]top and ask God for the strength and the ‘want’ … to obey Him,” 21 F. Supp.2d 147, 156 (NDNY 1998) (internal quotation marks omitted), and it invites children who “don’t know Jesus as Savior” to “trust the Lord Jesus to be [their] Savior from sin,” ibid. The dissenters and the Second Circuit say that the presence of such additional speech, because it is purely religious, transforms the Club’s meetings into something different in kind from other, nonreligious activities that teach moral and character development. See post, at 4–5 ( Stevens , J., dissenting); post, at 4–5 ( Souter , J., dissenting); 202 F. 3d, at 509–511. Therefore, the argument goes, excluding the Club is not viewpoint discrimination. I disagree.

Respondent has opened its facilities to any “us[e] pertaining to the welfare of the community, provided that such us[e] shall be nonexclusive and shall be opened to the general public.” App. to Pet. for Cert. D1. Shaping the moral and character development of children certainly “pertain[s] to the welfare of the community.” Thus, respondent has agreed that groups engaged in the endeavor of developing character may use its forum. The Boy Scouts, for example, may seek “to influence a boy’s character, development and spiritual growth,” App. N10–N11; cf. Boy Scouts of America v. Dale, 530 U. S. 640, 649 (2000) (“[T]he general mission of the Boy Scouts is clear: ‘[t]o instill values in young people’ ” (quoting the Scouts’ mission statement)), and a group may use Aesop’s Fables to teach moral values, App. N11. When the Club attempted to teach Biblical-based moral values, however, it was excluded because its activities “d[id] not involve merely a religious perspective on the secular subject of morality” and because “it [was] clear from the conduct of the meetings that the Good News Club goes far beyond merely stating its viewpoint.” 202 F. 3d, at 510.

From no other group does respondent require the sterility of speech that it demands of petitioners. The Boy Scouts could undoubtedly buttress their exhortations to keep “morally straight” and live “clean” lives, see Boy Scouts of America v. Dale, supra, at 649, by giving reasons why that is a good idea—because parents want and expect it, because it will make the scouts “better” and “more successful” people, because it will emulate such admired past Scouts as former President Gerald Ford. The Club, however, may only discuss morals and character, and cannot give its reasons why they should be fostered—because God wants and expects it, because it will make the Club members “saintly” people, and because it emulates Jesus Christ. The Club may not, in other words, independently discuss the religious premise on which its views are based—that God exists and His assistance is necessary to morality. It may not defend the premise, and it absolutely must not seek to persuade the children that the premise is true. The children must, so to say, take it on faith. This is blatant viewpoint discrimination. Just as calls to character based on patriotism will go unanswered if the listeners do not believe their country is good and just, calls to moral behavior based on God’s will are useless if the listeners do not believe that God exists. Effectiveness in presenting a viewpoint rests on the persuasiveness with which the speaker defends his premise—and in respondent’s facilities every premise but a religious one may be defended.

In Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819 (1995) , we struck down a similar viewpoint restriction. There, a private student newspaper sought funding from a student-activity fund on the same basis as its secular counterparts. And though the paper printed such directly religious material as exhortations to belief, see id., at 826 (quoting the paper’s self-described mission “ ‘to encourage students to consider what a personal relationship with Jesus Christ means’ ”); id., at 865 ( Souter, J., dissenting) (“ ‘The only way to salvation through Him is by confessing and repenting of sin. It is the Christian’s duty to make sinners aware of their need for salvation’ ” (quoting the paper)); see also id., at 865–867 (quoting other examples), we held that refusing to provide the funds discriminated on the basis of viewpoint, because the religious speech had been used to “provid[e] … a specific premise … from which a variety of subjects may be discussed and considered,” id., at 831 (opinion of the Court). The right to present a viewpoint based on a religion premise carried with it the right to defend the premise.

The dissenters emphasize that the religious speech used by the Club as the foundation for its views on morals and character is not just any type of religious speech—although they cannot agree exactly what type of religious speech it is. In Justice Stevens ’ view, it is speech “aimed principally at proselytizing or inculcating belief in a particular religious faith,” post, at 1; see also post, at 5, n. 3. This does not, to begin with, distinguish Rosenberger, which also involved proselytizing speech, as the above quotations show. See also Rosenberger, supra, at 844 (referring approvingly to the dissent’s description of the paper as a “wor[k] characterized by … evangelism”). But in addition, it does not distinguish the Club’s activities from those of the other groups using respondent’s forum—which have not, as Justice Stevens suggests, see post, at 2–3, been restricted to roundtable “discussions” of moral issues. Those groups may seek to inculcate children with their beliefs, and they may furthermore “recruit others to join their respective groups,” post, at 3. The Club must therefore have liberty to do the same, even if, as Justice Stevens fears without support in the record, see post, at 3, its actions may prove (shudder!) divisive. See Lamb’s Chapel, 508 U. S., at 395 (remarking that worries about “public unrest” caused by “proselytizing” are “difficult to defend as a reason to deny the presentation of a religious point of view”); cf. Lynch v. Donnelly, 465 U. S. 668, 684–685 (1984) (holding that “political divisiveness” could not invalidate inclusion of crche in municipal Christmas display); Cantwell v. Connecticut, 310 U. S., at 310–311.

Justice Souter , while agreeing that the Club’s religious speech “may be characterized as proselytizing,” post, at 5, n. 3, thinks that it is even more clearly excludable from respondent’s forum because it is essentially “an evangelical service of worship,” post, at 5. But we have previously rejected the attempt to distinguish worship from other religious speech, saying that “the distinction has [no] intelligible content,” and further, no “ relevance ” to the constitutional issue. Widmar v. Vincent, 454 U. S. 263, n. 6 (1981); see also Murdock v. Pennsylvania, 319 U. S., at 109 (refusing to distinguish evangelism from worship). 3 Those holdings are surely proved correct today by the dissenters’ inability to agree, even between themselves, into which subcategory of religious speech the Club’s activities fell. If the distinction did have content, it would be beyond the courts’ competence to administer. Widmar v. Vincent, supra, at 269, n. 6; cf. Lee v. Weisman, 505 U. S. 577, 616–617 (1992) ( Souter , J., concurring) (“I can hardly imagine a subject less amenable to the competence of the federal judiciary, or more deliberately to be avoided where possible,” than “comparative theology”). And if courts (and other government officials) were competent, applying the distinction would require state monitoring of private, religious speech with a degree of pervasiveness that we have previously found unacceptable. See, e.g., Rosenberger v. Rector and Visitors of Univ. of Va., supra, at 844–845; Widmar v. Vincent, supra, at 269, n. 6. I will not endorse an approach that suffers such a wondrous diversity of flaws.

* * *

With these words of explanation, I join the opinion of the Court.


Notes

1 In this regard, I should note the inaccuracy of the Justice Souter’s claim that the reasonableness of the forum limitation is not properly before us, see post, at 2–3, and n. 1 (dissenting opinion). Petitioners argued, both in their papers filed in the District Court, Memorandum of Law in Support of Cross-Motion for Summary Judgment in No. 97-CV-0302 (NDNY), pp. 20–22, and in their brief filed on appeal, Brief for Appellants in No. 98–9494 (CA2), pp. 33–35, that respondent’s exclusion of them from the forum was unreasonable in light of the purposes served by the forum. Although the District Court did say in passing that the reasonableness of respondent’s general restriction on use of its facilities for religious purposes was not challenged, see 21 F. Supp.2d 147, 154 (NDNY 1998), the Court of Appeals apparently decided that the particular reasonableness challenge brought by petitioners had been preserved, because it addressed the argument on the merits, see 202 F. 3d 502, 509 (CA2 2000) (“Taking first the reasonableness criterion, the Club argues that the restriction is unreasonable … . This argument is foreclosed by precedent”).

2 Neither does the disagreement center on the mode of the Club’s speech—the fact that it sings songs and plays games. Although a forum could perhaps be opened to lectures but not plays, debates but not concerts, respondent has placed no such restrictions on the use of its facilities. See App. N8, N14, N19 (allowing seminars, concerts, and plays).

3 We have drawn a different distinction—between religious speech generally and speech about religion—but only with regard to restrictions the State must place on its own speech, where pervasive state monitoring is unproblematic. See School Dist. of Abington Township v. Schempp, 374 U. S. 203, 225 (1963) (State schools in their official capacity may not teach religion but may teach about religion). Whatever the rule there, licensing and monitoring private religious speech is an entirely different matter, see, e.g., Kunz v. New York, 340 U. S. 290, 293–294 (1951) , even in a limited public forum where the state has some authority to draw subject-matter distinctions.


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Dissent

GOOD NEWS CLUB, et al. , PETITIONERS v. MILFORD CENTRAL SCHOOL

on writ of certiorari to the united states court of appeals for the second circuit


[June 11, 2001]

Justice Stevens , dissenting.

The Milford Central School has invited the public to use its facilities for educational and recreational purposes, but not for “religious purposes.” Speech for “religious purposes” may reasonably be understood to encompass three different categories. First, there is religious speech that is simply speech about a particular topic from a religious point of view. The film in Lamb’s Chapel v. Center Moriches Union Free School Dist., 508 U. S. 384 (1993) , illustrates this category. See id. , at 388 (observing that the film series at issue in that case “would discuss Dr. [James] Dobson’s views on the undermining influences of the media that could only be counterbalanced by returning to traditional, Christian family values instilled at an early stage”). Second, there is religious speech that amounts to worship, or its equivalent. Our decision in Widmar v. Vincent, 454 U. S. 263 (1981) , concerned such speech. See id. , at 264–265 (describing the speech in question as involving “religious worship”). Third, there is an intermediate category that is aimed principally at proselytizing or inculcating belief in a particular religious faith.

A public entity may not generally exclude even religious worship from an open public forum. Id. , at 276. Similarly, a public entity that creates a limited public forum for the discussion of certain specified topics may not exclude a speaker simply because she approaches those topics from a religious point of view. Thus, in Lamb’s Chapel we held that a public school that permitted its facilities to be used for the discussion of family issues and child rearing could not deny access to speakers presenting a religious point of view on those issues. See Lamb’s Chapel , 508 U. S., at 393–394.

But, while a public entity may not censor speech about an authorized topic based on the point of view expressed by the speaker, it has broad discretion to “preserve the property under its control for the use to which it is lawfully dedicated.” Greer v. Spock, 424 U. S. 828, 836 (1976) ; see also Board of Ed. of Westside Community Schools (Dist. 66) v. Mergens, 496 U. S. 226, 275, n. 6 (1990) ( Stevens, J ., dissenting) (“A school’s extracurricular activities constitute a part of the school’s teaching mission, and the school accordingly must make ‘decisions concerning the content of those activities’ ” (quoting Widmar , 454 U. S., at 278 ( Stevens, J., concurring in judgment)). Accordingly, “control over access to a nonpublic forum can be based on subject matter and speaker identity so long as the distinctions drawn are reasonable in light of the purpose served by the forum and are viewpoint neutral.” Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U. S. 788, 806 (1985) . The novel question that this case presents concerns the constitutionality of a public school’s attempt to limit the scope of a public forum it has created. More specifically, the question is whether a school can, consistently with the First Amendment, create a limited public forum that admits the first type of religious speech without allowing the other two.

Distinguishing speech from a religious viewpoint, on the one hand, from religious proselytizing, on the other, is comparable to distinguishing meetings to discuss political issues from meetings whose principal purpose is to recruit new members to join a political organization. If a school decides to authorize after school discussions of current events in its classrooms, it may not exclude people from expressing their views simply because it dislikes their particular political opinions. But must it therefore allow organized political groups—for example, the Democratic Party, the Libertarian Party, or the Ku Klux Klan—to hold meetings, the principal purpose of which is not to discuss the current-events topic from their own unique point of view but rather to recruit others to join their respective groups? I think not. Such recruiting meetings may introduce divisiveness and tend to separate young children into cliques that undermine the school’s educational mission. Cf. Lehman v. Shaker Heights, 418 U. S. 298 (1974) (upholding a city’s refusal to allow “political advertising” on public transportation).

School officials may reasonably believe that evangelical meetings designed to convert children to a particular religious faith pose the same risk. And, just as a school may allow meetings to discuss current events from a political perspective without also allowing organized political recruitment, so too can a school allow discussion of topics such as moral development from a religious (or nonreligious) perspective without thereby opening its forum to religious proselytizing or worship. See, e.g. , Campbell v. St. Tammany Parish School Board , 231 F. 3d 937, 942 (CA5 2000) (“Under the Supreme Court’s jurisprudence, a government entity such as a school board has the opportunity to open its facilities to activity protected by the First Amendment, without inviting political or religious activities presented in a form that would disserve its efforts to maintain neutrality”). Moreover, any doubt on a question such as this should be resolved in a way that minimizes “intrusion by the Federal Government into the operation of our public schools,” Mergens , 496 U. S., at 290 ( Stevens, J ., dissenting); see also Epperson v. Arkansas, 393 U. S. 97, 104 (1968) (“Judicial interposition in the operation of the public school system of the Nation raises problems requiring care and restraint… . By and large, public education in our Nation is committed to the control of state and local authorities”).

The particular limitation of the forum at issue in this case is one that prohibits the use of the school’s facilities for “religious purposes.” It is clear that, by “religious purposes,” the school district did not intend to exclude all speech from a religious point of view. See App. N13–N15 (testimony of the superintendent for Milford schools indicating that the policy would permit people to teach “that man was created by God as described in the Book of Genesis” and that crime was caused by society’s “lack of faith in God”). Instead, it sought only to exclude religious speech whose principal goal is to “promote the gospel.” App. N18. In other words, the school sought to allow the first type of religious speech while excluding the second and third types. As long as this is done in an even handed manner, I see no constitutional violation in such an effort. 1 The line between the various categories of religious speech may be difficult to draw, but I think that the distinctions are valid, and that a school, particularly an elementary school, must be permitted to draw them. 2 Cf. Illinois ex rel. McCollum v. Board of Ed. of School Dist. No. 71, Champaign Cty., 333 U. S. 203, 231 (1948) (Frankfurter, J., concurring) (“In no activity of the State is it more vital to keep out divisive forces than in its schools …”).

This case is undoubtedly close. Nonetheless, regardless of whether the Good News Club’s activities amount to “worship,” it does seem clear, based on the facts in the record, that the school district correctly classified those activities as falling within the third category of religious speech and therefore beyond the scope of the school’s limited public forum. 3 In short, I am persuaded that the school district could (and did) permissibly exclude from its limited public forum proselytizing religious speech that does not rise to the level of actual worship. I would therefore affirm the judgment of the Court of Appeals.

Even if I agreed with Part II of the majority opinion, however, I would not reach out, as it does in Part IV, to decide a constitutional question that was not addressed by either the District Court or the Court of Appeals. Accordingly, I respectfully dissent.


Notes

1 The school district, for example, could not, consistently with its present policy, allow school facilities to be used by a group that affirmatively attempted to inculcate nonbelief in God or in the view that morality is wholly unrelated to belief in God. Nothing in the record, however, indicates that any such group was allowed to use school facilities.

2 “A perceptive observer sees a material difference between the light of day and the dark of night, and knows that difference to be a reality even though the two are separated not by a bright line but by a zone of twilight.” Buirkle v. Hanover Insurance Cos., 832 F. Supp. 469, 483 (Mass. 1993).

3 The majority elides the distinction between religious speech on a particular topic and religious speech that seeks primarily to inculcate belief. Thus, it relies on Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819 (1995) , as if that case involved precisely the same type of speech that is at issue here. But, while both Wide Awake, the organization in Rosenberger, and the Good News Club engage in a mixture of different types of religious speech, the Rosenberger Court clearly believed that the first type of religious speech predominated in Wide Awake. It described that group’s publications as follows: “The first issue had articles about racism, crisis pregnancy, stress, prayer, C.S. Lewis’ ideas about evil and free will, and reviews of religious music. In the next two issues, Wide Awake featured stories about homosexuality, Christian missionary work, and eating disorders, as well as music reviews and interviews with University professors.” Id., at 826. In contrast to Wide Awake’s emphasis on providing Christian commentary on such a diverse array of topics, Good News Club meetings are dominated by religious exhortation, see post, at 4–5 (Souter, J., dissenting). My position is therefore consistent with the Court’s decision in Rosenberger.


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Dissent

GOOD NEWS CLUB, et al. , PETITIONERS v. MILFORD CENTRAL SCHOOL

on writ of certiorari to the united states court of appeals for the second circuit


[June 11, 2001]

Justice Stevens , dissenting.

The Milford Central School has invited the public to use its facilities for educational and recreational purposes, but not for “religious purposes.” Speech for “religious purposes” may reasonably be understood to encompass three different categories. First, there is religious speech that is simply speech about a particular topic from a religious point of view. The film in Lamb’s Chapel v. Center Moriches Union Free School Dist., 508 U. S. 384 (1993) , illustrates this category. See id. , at 388 (observing that the film series at issue in that case “would discuss Dr. [James] Dobson’s views on the undermining influences of the media that could only be counterbalanced by returning to traditional, Christian family values instilled at an early stage”). Second, there is religious speech that amounts to worship, or its equivalent. Our decision in Widmar v. Vincent, 454 U. S. 263 (1981) , concerned such speech. See id. , at 264–265 (describing the speech in question as involving “religious worship”). Third, there is an intermediate category that is aimed principally at proselytizing or inculcating belief in a particular religious faith.

A public entity may not generally exclude even religious worship from an open public forum. Id. , at 276. Similarly, a public entity that creates a limited public forum for the discussion of certain specified topics may not exclude a speaker simply because she approaches those topics from a religious point of view. Thus, in Lamb’s Chapel we held that a public school that permitted its facilities to be used for the discussion of family issues and child rearing could not deny access to speakers presenting a religious point of view on those issues. See Lamb’s Chapel , 508 U. S., at 393–394.

But, while a public entity may not censor speech about an authorized topic based on the point of view expressed by the speaker, it has broad discretion to “preserve the property under its control for the use to which it is lawfully dedicated.” Greer v. Spock, 424 U. S. 828, 836 (1976) ; see also Board of Ed. of Westside Community Schools (Dist. 66) v. Mergens, 496 U. S. 226, 275, n. 6 (1990) ( Stevens, J ., dissenting) (“A school’s extracurricular activities constitute a part of the school’s teaching mission, and the school accordingly must make ‘decisions concerning the content of those activities’ ” (quoting Widmar , 454 U. S., at 278 ( Stevens, J., concurring in judgment)). Accordingly, “control over access to a nonpublic forum can be based on subject matter and speaker identity so long as the distinctions drawn are reasonable in light of the purpose served by the forum and are viewpoint neutral.” Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U. S. 788, 806 (1985) . The novel question that this case presents concerns the constitutionality of a public school’s attempt to limit the scope of a public forum it has created. More specifically, the question is whether a school can, consistently with the First Amendment, create a limited public forum that admits the first type of religious speech without allowing the other two.

Distinguishing speech from a religious viewpoint, on the one hand, from religious proselytizing, on the other, is comparable to distinguishing meetings to discuss political issues from meetings whose principal purpose is to recruit new members to join a political organization. If a school decides to authorize after school discussions of current events in its classrooms, it may not exclude people from expressing their views simply because it dislikes their particular political opinions. But must it therefore allow organized political groups—for example, the Democratic Party, the Libertarian Party, or the Ku Klux Klan—to hold meetings, the principal purpose of which is not to discuss the current-events topic from their own unique point of view but rather to recruit others to join their respective groups? I think not. Such recruiting meetings may introduce divisiveness and tend to separate young children into cliques that undermine the school’s educational mission. Cf. Lehman v. Shaker Heights, 418 U. S. 298 (1974) (upholding a city’s refusal to allow “political advertising” on public transportation).

School officials may reasonably believe that evangelical meetings designed to convert children to a particular religious faith pose the same risk. And, just as a school may allow meetings to discuss current events from a political perspective without also allowing organized political recruitment, so too can a school allow discussion of topics such as moral development from a religious (or nonreligious) perspective without thereby opening its forum to religious proselytizing or worship. See, e.g. , Campbell v. St. Tammany Parish School Board , 231 F. 3d 937, 942 (CA5 2000) (“Under the Supreme Court’s jurisprudence, a government entity such as a school board has the opportunity to open its facilities to activity protected by the First Amendment, without inviting political or religious activities presented in a form that would disserve its efforts to maintain neutrality”). Moreover, any doubt on a question such as this should be resolved in a way that minimizes “intrusion by the Federal Government into the operation of our public schools,” Mergens , 496 U. S., at 290 ( Stevens, J ., dissenting); see also Epperson v. Arkansas, 393 U. S. 97, 104 (1968) (“Judicial interposition in the operation of the public school system of the Nation raises problems requiring care and restraint… . By and large, public education in our Nation is committed to the control of state and local authorities”).

The particular limitation of the forum at issue in this case is one that prohibits the use of the school’s facilities for “religious purposes.” It is clear that, by “religious purposes,” the school district did not intend to exclude all speech from a religious point of view. See App. N13–N15 (testimony of the superintendent for Milford schools indicating that the policy would permit people to teach “that man was created by God as described in the Book of Genesis” and that crime was caused by society’s “lack of faith in God”). Instead, it sought only to exclude religious speech whose principal goal is to “promote the gospel.” App. N18. In other words, the school sought to allow the first type of religious speech while excluding the second and third types. As long as this is done in an even handed manner, I see no constitutional violation in such an effort. 1 The line between the various categories of religious speech may be difficult to draw, but I think that the distinctions are valid, and that a school, particularly an elementary school, must be permitted to draw them. 2 Cf. Illinois ex rel. McCollum v. Board of Ed. of School Dist. No. 71, Champaign Cty., 333 U. S. 203, 231 (1948) (Frankfurter, J., concurring) (“In no activity of the State is it more vital to keep out divisive forces than in its schools …”).

This case is undoubtedly close. Nonetheless, regardless of whether the Good News Club’s activities amount to “worship,” it does seem clear, based on the facts in the record, that the school district correctly classified those activities as falling within the third category of religious speech and therefore beyond the scope of the school’s limited public forum. 3 In short, I am persuaded that the school district could (and did) permissibly exclude from its limited public forum proselytizing religious speech that does not rise to the level of actual worship. I would therefore affirm the judgment of the Court of Appeals.

Even if I agreed with Part II of the majority opinion, however, I would not reach out, as it does in Part IV, to decide a constitutional question that was not addressed by either the District Court or the Court of Appeals. Accordingly, I respectfully dissent.


Notes

1 The school district, for example, could not, consistently with its present policy, allow school facilities to be used by a group that affirmatively attempted to inculcate nonbelief in God or in the view that morality is wholly unrelated to belief in God. Nothing in the record, however, indicates that any such group was allowed to use school facilities.

2 “A perceptive observer sees a material difference between the light of day and the dark of night, and knows that difference to be a reality even though the two are separated not by a bright line but by a zone of twilight.” Buirkle v. Hanover Insurance Cos., 832 F. Supp. 469, 483 (Mass. 1993).

3 The majority elides the distinction between religious speech on a particular topic and religious speech that seeks primarily to inculcate belief. Thus, it relies on Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819 (1995) , as if that case involved precisely the same type of speech that is at issue here. But, while both Wide Awake, the organization in Rosenberger, and the Good News Club engage in a mixture of different types of religious speech, the Rosenberger Court clearly believed that the first type of religious speech predominated in Wide Awake. It described that group’s publications as follows: “The first issue had articles about racism, crisis pregnancy, stress, prayer, C.S. Lewis’ ideas about evil and free will, and reviews of religious music. In the next two issues, Wide Awake featured stories about homosexuality, Christian missionary work, and eating disorders, as well as music reviews and interviews with University professors.” Id., at 826. In contrast to Wide Awake’s emphasis on providing Christian commentary on such a diverse array of topics, Good News Club meetings are dominated by religious exhortation, see post, at 4–5 (Souter, J., dissenting). My position is therefore consistent with the Court’s decision in Rosenberger.


TOP

Dissent

GOOD NEWS CLUB, et al. , PETITIONERS v. MILFORD CENTRAL SCHOOL

on writ of certiorari to the united states court of appeals for the second circuit


[June 11, 2001]

Justice Stevens , dissenting.

The Milford Central School has invited the public to use its facilities for educational and recreational purposes, but not for “religious purposes.” Speech for “religious purposes” may reasonably be understood to encompass three different categories. First, there is religious speech that is simply speech about a particular topic from a religious point of view. The film in Lamb’s Chapel v. Center Moriches Union Free School Dist., 508 U. S. 384 (1993) , illustrates this category. See id. , at 388 (observing that the film series at issue in that case “would discuss Dr. [James] Dobson’s views on the undermining influences of the media that could only be counterbalanced by returning to traditional, Christian family values instilled at an early stage”). Second, there is religious speech that amounts to worship, or its equivalent. Our decision in Widmar v. Vincent, 454 U. S. 263 (1981) , concerned such speech. See id. , at 264–265 (describing the speech in question as involving “religious worship”). Third, there is an intermediate category that is aimed principally at proselytizing or inculcating belief in a particular religious faith.

A public entity may not generally exclude even religious worship from an open public forum. Id. , at 276. Similarly, a public entity that creates a limited public forum for the discussion of certain specified topics may not exclude a speaker simply because she approaches those topics from a religious point of view. Thus, in Lamb’s Chapel we held that a public school that permitted its facilities to be used for the discussion of family issues and child rearing could not deny access to speakers presenting a religious point of view on those issues. See Lamb’s Chapel , 508 U. S., at 393–394.

But, while a public entity may not censor speech about an authorized topic based on the point of view expressed by the speaker, it has broad discretion to “preserve the property under its control for the use to which it is lawfully dedicated.” Greer v. Spock, 424 U. S. 828, 836 (1976) ; see also Board of Ed. of Westside Community Schools (Dist. 66) v. Mergens, 496 U. S. 226, 275, n. 6 (1990) ( Stevens, J ., dissenting) (“A school’s extracurricular activities constitute a part of the school’s teaching mission, and the school accordingly must make ‘decisions concerning the content of those activities’ ” (quoting Widmar , 454 U. S., at 278 ( Stevens, J., concurring in judgment)). Accordingly, “control over access to a nonpublic forum can be based on subject matter and speaker identity so long as the distinctions drawn are reasonable in light of the purpose served by the forum and are viewpoint neutral.” Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U. S. 788, 806 (1985) . The novel question that this case presents concerns the constitutionality of a public school’s attempt to limit the scope of a public forum it has created. More specifically, the question is whether a school can, consistently with the First Amendment, create a limited public forum that admits the first type of religious speech without allowing the other two.

Distinguishing speech from a religious viewpoint, on the one hand, from religious proselytizing, on the other, is comparable to distinguishing meetings to discuss political issues from meetings whose principal purpose is to recruit new members to join a political organization. If a school decides to authorize after school discussions of current events in its classrooms, it may not exclude people from expressing their views simply because it dislikes their particular political opinions. But must it therefore allow organized political groups—for example, the Democratic Party, the Libertarian Party, or the Ku Klux Klan—to hold meetings, the principal purpose of which is not to discuss the current-events topic from their own unique point of view but rather to recruit others to join their respective groups? I think not. Such recruiting meetings may introduce divisiveness and tend to separate young children into cliques that undermine the school’s educational mission. Cf. Lehman v. Shaker Heights, 418 U. S. 298 (1974) (upholding a city’s refusal to allow “political advertising” on public transportation).

School officials may reasonably believe that evangelical meetings designed to convert children to a particular religious faith pose the same risk. And, just as a school may allow meetings to discuss current events from a political perspective without also allowing organized political recruitment, so too can a school allow discussion of topics such as moral development from a religious (or nonreligious) perspective without thereby opening its forum to religious proselytizing or worship. See, e.g. , Campbell v. St. Tammany Parish School Board , 231 F. 3d 937, 942 (CA5 2000) (“Under the Supreme Court’s jurisprudence, a government entity such as a school board has the opportunity to open its facilities to activity protected by the First Amendment, without inviting political or religious activities presented in a form that would disserve its efforts to maintain neutrality”). Moreover, any doubt on a question such as this should be resolved in a way that minimizes “intrusion by the Federal Government into the operation of our public schools,” Mergens , 496 U. S., at 290 ( Stevens, J ., dissenting); see also Epperson v. Arkansas, 393 U. S. 97, 104 (1968) (“Judicial interposition in the operation of the public school system of the Nation raises problems requiring care and restraint… . By and large, public education in our Nation is committed to the control of state and local authorities”).

The particular limitation of the forum at issue in this case is one that prohibits the use of the school’s facilities for “religious purposes.” It is clear that, by “religious purposes,” the school district did not intend to exclude all speech from a religious point of view. See App. N13–N15 (testimony of the superintendent for Milford schools indicating that the policy would permit people to teach “that man was created by God as described in the Book of Genesis” and that crime was caused by society’s “lack of faith in God”). Instead, it sought only to exclude religious speech whose principal goal is to “promote the gospel.” App. N18. In other words, the school sought to allow the first type of religious speech while excluding the second and third types. As long as this is done in an even handed manner, I see no constitutional violation in such an effort. 1 The line between the various categories of religious speech may be difficult to draw, but I think that the distinctions are valid, and that a school, particularly an elementary school, must be permitted to draw them. 2 Cf. Illinois ex rel. McCollum v. Board of Ed. of School Dist. No. 71, Champaign Cty., 333 U. S. 203, 231 (1948) (Frankfurter, J., concurring) (“In no activity of the State is it more vital to keep out divisive forces than in its schools …”).

This case is undoubtedly close. Nonetheless, regardless of whether the Good News Club’s activities amount to “worship,” it does seem clear, based on the facts in the record, that the school district correctly classified those activities as falling within the third category of religious speech and therefore beyond the scope of the school’s limited public forum. 3 In short, I am persuaded that the school district could (and did) permissibly exclude from its limited public forum proselytizing religious speech that does not rise to the level of actual worship. I would therefore affirm the judgment of the Court of Appeals.

Even if I agreed with Part II of the majority opinion, however, I would not reach out, as it does in Part IV, to decide a constitutional question that was not addressed by either the District Court or the Court of Appeals. Accordingly, I respectfully dissent.


Notes

1 The school district, for example, could not, consistently with its present policy, allow school facilities to be used by a group that affirmatively attempted to inculcate nonbelief in God or in the view that morality is wholly unrelated to belief in God. Nothing in the record, however, indicates that any such group was allowed to use school facilities.

2 “A perceptive observer sees a material difference between the light of day and the dark of night, and knows that difference to be a reality even though the two are separated not by a bright line but by a zone of twilight.” Buirkle v. Hanover Insurance Cos., 832 F. Supp. 469, 483 (Mass. 1993).

3 The majority elides the distinction between religious speech on a particular topic and religious speech that seeks primarily to inculcate belief. Thus, it relies on Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819 (1995) , as if that case involved precisely the same type of speech that is at issue here. But, while both Wide Awake, the organization in Rosenberger, and the Good News Club engage in a mixture of different types of religious speech, the Rosenberger Court clearly believed that the first type of religious speech predominated in Wide Awake. It described that group’s publications as follows: “The first issue had articles about racism, crisis pregnancy, stress, prayer, C.S. Lewis’ ideas about evil and free will, and reviews of religious music. In the next two issues, Wide Awake featured stories about homosexuality, Christian missionary work, and eating disorders, as well as music reviews and interviews with University professors.” Id., at 826. In contrast to Wide Awake’s emphasis on providing Christian commentary on such a diverse array of topics, Good News Club meetings are dominated by religious exhortation, see post, at 4–5 (Souter, J., dissenting). My position is therefore consistent with the Court’s decision in Rosenberger.


TOP

Dissent

GOOD NEWS CLUB, et al. , PETITIONERS v. MILFORD CENTRAL SCHOOL

on writ of certiorari to the united states court of appeals for the second circuit


[June 11, 2001]

Justice Stevens , dissenting.

The Milford Central School has invited the public to use its facilities for educational and recreational purposes, but not for “religious purposes.” Speech for “religious purposes” may reasonably be understood to encompass three different categories. First, there is religious speech that is simply speech about a particular topic from a religious point of view. The film in Lamb’s Chapel v. Center Moriches Union Free School Dist., 508 U. S. 384 (1993) , illustrates this category. See id. , at 388 (observing that the film series at issue in that case “would discuss Dr. [James] Dobson’s views on the undermining influences of the media that could only be counterbalanced by returning to traditional, Christian family values instilled at an early stage”). Second, there is religious speech that amounts to worship, or its equivalent. Our decision in Widmar v. Vincent, 454 U. S. 263 (1981) , concerned such speech. See id. , at 264–265 (describing the speech in question as involving “religious worship”). Third, there is an intermediate category that is aimed principally at proselytizing or inculcating belief in a particular religious faith.

A public entity may not generally exclude even religious worship from an open public forum. Id. , at 276. Similarly, a public entity that creates a limited public forum for the discussion of certain specified topics may not exclude a speaker simply because she approaches those topics from a religious point of view. Thus, in Lamb’s Chapel we held that a public school that permitted its facilities to be used for the discussion of family issues and child rearing could not deny access to speakers presenting a religious point of view on those issues. See Lamb’s Chapel , 508 U. S., at 393–394.

But, while a public entity may not censor speech about an authorized topic based on the point of view expressed by the speaker, it has broad discretion to “preserve the property under its control for the use to which it is lawfully dedicated.” Greer v. Spock, 424 U. S. 828, 836 (1976) ; see also Board of Ed. of Westside Community Schools (Dist. 66) v. Mergens, 496 U. S. 226, 275, n. 6 (1990) ( Stevens, J ., dissenting) (“A school’s extracurricular activities constitute a part of the school’s teaching mission, and the school accordingly must make ‘decisions concerning the content of those activities’ ” (quoting Widmar , 454 U. S., at 278 ( Stevens, J., concurring in judgment)). Accordingly, “control over access to a nonpublic forum can be based on subject matter and speaker identity so long as the distinctions drawn are reasonable in light of the purpose served by the forum and are viewpoint neutral.” Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U. S. 788, 806 (1985) . The novel question that this case presents concerns the constitutionality of a public school’s attempt to limit the scope of a public forum it has created. More specifically, the question is whether a school can, consistently with the First Amendment, create a limited public forum that admits the first type of religious speech without allowing the other two.

Distinguishing speech from a religious viewpoint, on the one hand, from religious proselytizing, on the other, is comparable to distinguishing meetings to discuss political issues from meetings whose principal purpose is to recruit new members to join a political organization. If a school decides to authorize after school discussions of current events in its classrooms, it may not exclude people from expressing their views simply because it dislikes their particular political opinions. But must it therefore allow organized political groups—for example, the Democratic Party, the Libertarian Party, or the Ku Klux Klan—to hold meetings, the principal purpose of which is not to discuss the current-events topic from their own unique point of view but rather to recruit others to join their respective groups? I think not. Such recruiting meetings may introduce divisiveness and tend to separate young children into cliques that undermine the school’s educational mission. Cf. Lehman v. Shaker Heights, 418 U. S. 298 (1974) (upholding a city’s refusal to allow “political advertising” on public transportation).

School officials may reasonably believe that evangelical meetings designed to convert children to a particular religious faith pose the same risk. And, just as a school may allow meetings to discuss current events from a political perspective without also allowing organized political recruitment, so too can a school allow discussion of topics such as moral development from a religious (or nonreligious) perspective without thereby opening its forum to religious proselytizing or worship. See, e.g. , Campbell v. St. Tammany Parish School Board , 231 F. 3d 937, 942 (CA5 2000) (“Under the Supreme Court’s jurisprudence, a government entity such as a school board has the opportunity to open its facilities to activity protected by the First Amendment, without inviting political or religious activities presented in a form that would disserve its efforts to maintain neutrality”). Moreover, any doubt on a question such as this should be resolved in a way that minimizes “intrusion by the Federal Government into the operation of our public schools,” Mergens , 496 U. S., at 290 ( Stevens, J ., dissenting); see also Epperson v. Arkansas, 393 U. S. 97, 104 (1968) (“Judicial interposition in the operation of the public school system of the Nation raises problems requiring care and restraint… . By and large, public education in our Nation is committed to the control of state and local authorities”).

The particular limitation of the forum at issue in this case is one that prohibits the use of the school’s facilities for “religious purposes.” It is clear that, by “religious purposes,” the school district did not intend to exclude all speech from a religious point of view. See App. N13–N15 (testimony of the superintendent for Milford schools indicating that the policy would permit people to teach “that man was created by God as described in the Book of Genesis” and that crime was caused by society’s “lack of faith in God”). Instead, it sought only to exclude religious speech whose principal goal is to “promote the gospel.” App. N18. In other words, the school sought to allow the first type of religious speech while excluding the second and third types. As long as this is done in an even handed manner, I see no constitutional violation in such an effort. 1 The line between the various categories of religious speech may be difficult to draw, but I think that the distinctions are valid, and that a school, particularly an elementary school, must be permitted to draw them. 2 Cf. Illinois ex rel. McCollum v. Board of Ed. of School Dist. No. 71, Champaign Cty., 333 U. S. 203, 231 (1948) (Frankfurter, J., concurring) (“In no activity of the State is it more vital to keep out divisive forces than in its schools …”).

This case is undoubtedly close. Nonetheless, regardless of whether the Good News Club’s activities amount to “worship,” it does seem clear, based on the facts in the record, that the school district correctly classified those activities as falling within the third category of religious speech and therefore beyond the scope of the school’s limited public forum. 3 In short, I am persuaded that the school district could (and did) permissibly exclude from its limited public forum proselytizing religious speech that does not rise to the level of actual worship. I would therefore affirm the judgment of the Court of Appeals.

Even if I agreed with Part II of the majority opinion, however, I would not reach out, as it does in Part IV, to decide a constitutional question that was not addressed by either the District Court or the Court of Appeals. Accordingly, I respectfully dissent.


Notes

1 The school district, for example, could not, consistently with its present policy, allow school facilities to be used by a group that affirmatively attempted to inculcate nonbelief in God or in the view that morality is wholly unrelated to belief in God. Nothing in the record, however, indicates that any such group was allowed to use school facilities.

2 “A perceptive observer sees a material difference between the light of day and the dark of night, and knows that difference to be a reality even though the two are separated not by a bright line but by a zone of twilight.” Buirkle v. Hanover Insurance Cos., 832 F. Supp. 469, 483 (Mass. 1993).

3 The majority elides the distinction between religious speech on a particular topic and religious speech that seeks primarily to inculcate belief. Thus, it relies on Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819 (1995) , as if that case involved precisely the same type of speech that is at issue here. But, while both Wide Awake, the organization in Rosenberger, and the Good News Club engage in a mixture of different types of religious speech, the Rosenberger Court clearly believed that the first type of religious speech predominated in Wide Awake. It described that group’s publications as follows: “The first issue had articles about racism, crisis pregnancy, stress, prayer, C.S. Lewis’ ideas about evil and free will, and reviews of religious music. In the next two issues, Wide Awake featured stories about homosexuality, Christian missionary work, and eating disorders, as well as music reviews and interviews with University professors.” Id., at 826. In contrast to Wide Awake’s emphasis on providing Christian commentary on such a diverse array of topics, Good News Club meetings are dominated by religious exhortation, see post, at 4–5 (Souter, J., dissenting). My position is therefore consistent with the Court’s decision in Rosenberger.


TOP

Dissent

GOOD NEWS CLUB, et al. , PETITIONERS v. MILFORD CENTRAL SCHOOL

on writ of certiorari to the united states court of appeals for the second circuit


[June 11, 2001]

Justice Stevens , dissenting.

The Milford Central School has invited the public to use its facilities for educational and recreational purposes, but not for “religious purposes.” Speech for “religious purposes” may reasonably be understood to encompass three different categories. First, there is religious speech that is simply speech about a particular topic from a religious point of view. The film in Lamb’s Chapel v. Center Moriches Union Free School Dist., 508 U. S. 384 (1993) , illustrates this category. See id. , at 388 (observing that the film series at issue in that case “would discuss Dr. [James] Dobson’s views on the undermining influences of the media that could only be counterbalanced by returning to traditional, Christian family values instilled at an early stage”). Second, there is religious speech that amounts to worship, or its equivalent. Our decision in Widmar v. Vincent, 454 U. S. 263 (1981) , concerned such speech. See id. , at 264–265 (describing the speech in question as involving “religious worship”). Third, there is an intermediate category that is aimed principally at proselytizing or inculcating belief in a particular religious faith.

A public entity may not generally exclude even religious worship from an open public forum. Id. , at 276. Similarly, a public entity that creates a limited public forum for the discussion of certain specified topics may not exclude a speaker simply because she approaches those topics from a religious point of view. Thus, in Lamb’s Chapel we held that a public school that permitted its facilities to be used for the discussion of family issues and child rearing could not deny access to speakers presenting a religious point of view on those issues. See Lamb’s Chapel , 508 U. S., at 393–394.

But, while a public entity may not censor speech about an authorized topic based on the point of view expressed by the speaker, it has broad discretion to “preserve the property under its control for the use to which it is lawfully dedicated.” Greer v. Spock, 424 U. S. 828, 836 (1976) ; see also Board of Ed. of Westside Community Schools (Dist. 66) v. Mergens, 496 U. S. 226, 275, n. 6 (1990) ( Stevens, J ., dissenting) (“A school’s extracurricular activities constitute a part of the school’s teaching mission, and the school accordingly must make ‘decisions concerning the content of those activities’ ” (quoting Widmar , 454 U. S., at 278 ( Stevens, J., concurring in judgment)). Accordingly, “control over access to a nonpublic forum can be based on subject matter and speaker identity so long as the distinctions drawn are reasonable in light of the purpose served by the forum and are viewpoint neutral.” Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U. S. 788, 806 (1985) . The novel question that this case presents concerns the constitutionality of a public school’s attempt to limit the scope of a public forum it has created. More specifically, the question is whether a school can, consistently with the First Amendment, create a limited public forum that admits the first type of religious speech without allowing the other two.

Distinguishing speech from a religious viewpoint, on the one hand, from religious proselytizing, on the other, is comparable to distinguishing meetings to discuss political issues from meetings whose principal purpose is to recruit new members to join a political organization. If a school decides to authorize after school discussions of current events in its classrooms, it may not exclude people from expressing their views simply because it dislikes their particular political opinions. But must it therefore allow organized political groups—for example, the Democratic Party, the Libertarian Party, or the Ku Klux Klan—to hold meetings, the principal purpose of which is not to discuss the current-events topic from their own unique point of view but rather to recruit others to join their respective groups? I think not. Such recruiting meetings may introduce divisiveness and tend to separate young children into cliques that undermine the school’s educational mission. Cf. Lehman v. Shaker Heights, 418 U. S. 298 (1974) (upholding a city’s refusal to allow “political advertising” on public transportation).

School officials may reasonably believe that evangelical meetings designed to convert children to a particular religious faith pose the same risk. And, just as a school may allow meetings to discuss current events from a political perspective without also allowing organized political recruitment, so too can a school allow discussion of topics such as moral development from a religious (or nonreligious) perspective without thereby opening its forum to religious proselytizing or worship. See, e.g. , Campbell v. St. Tammany Parish School Board , 231 F. 3d 937, 942 (CA5 2000) (“Under the Supreme Court’s jurisprudence, a government entity such as a school board has the opportunity to open its facilities to activity protected by the First Amendment, without inviting political or religious activities presented in a form that would disserve its efforts to maintain neutrality”). Moreover, any doubt on a question such as this should be resolved in a way that minimizes “intrusion by the Federal Government into the operation of our public schools,” Mergens , 496 U. S., at 290 ( Stevens, J ., dissenting); see also Epperson v. Arkansas, 393 U. S. 97, 104 (1968) (“Judicial interposition in the operation of the public school system of the Nation raises problems requiring care and restraint… . By and large, public education in our Nation is committed to the control of state and local authorities”).

The particular limitation of the forum at issue in this case is one that prohibits the use of the school’s facilities for “religious purposes.” It is clear that, by “religious purposes,” the school district did not intend to exclude all speech from a religious point of view. See App. N13–N15 (testimony of the superintendent for Milford schools indicating that the policy would permit people to teach “that man was created by God as described in the Book of Genesis” and that crime was caused by society’s “lack of faith in God”). Instead, it sought only to exclude religious speech whose principal goal is to “promote the gospel.” App. N18. In other words, the school sought to allow the first type of religious speech while excluding the second and third types. As long as this is done in an even handed manner, I see no constitutional violation in such an effort. 1 The line between the various categories of religious speech may be difficult to draw, but I think that the distinctions are valid, and that a school, particularly an elementary school, must be permitted to draw them. 2 Cf. Illinois ex rel. McCollum v. Board of Ed. of School Dist. No. 71, Champaign Cty., 333 U. S. 203, 231 (1948) (Frankfurter, J., concurring) (“In no activity of the State is it more vital to keep out divisive forces than in its schools …”).

This case is undoubtedly close. Nonetheless, regardless of whether the Good News Club’s activities amount to “worship,” it does seem clear, based on the facts in the record, that the school district correctly classified those activities as falling within the third category of religious speech and therefore beyond the scope of the school’s limited public forum. 3 In short, I am persuaded that the school district could (and did) permissibly exclude from its limited public forum proselytizing religious speech that does not rise to the level of actual worship. I would therefore affirm the judgment of the Court of Appeals.

Even if I agreed with Part II of the majority opinion, however, I would not reach out, as it does in Part IV, to decide a constitutional question that was not addressed by either the District Court or the Court of Appeals. Accordingly, I respectfully dissent.


Notes

1 The school district, for example, could not, consistently with its present policy, allow school facilities to be used by a group that affirmatively attempted to inculcate nonbelief in God or in the view that morality is wholly unrelated to belief in God. Nothing in the record, however, indicates that any such group was allowed to use school facilities.

2 “A perceptive observer sees a material difference between the light of day and the dark of night, and knows that difference to be a reality even though the two are separated not by a bright line but by a zone of twilight.” Buirkle v. Hanover Insurance Cos., 832 F. Supp. 469, 483 (Mass. 1993).

3 The majority elides the distinction between religious speech on a particular topic and religious speech that seeks primarily to inculcate belief. Thus, it relies on Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819 (1995) , as if that case involved precisely the same type of speech that is at issue here. But, while both Wide Awake, the organization in Rosenberger, and the Good News Club engage in a mixture of different types of religious speech, the Rosenberger Court clearly believed that the first type of religious speech predominated in Wide Awake. It described that group’s publications as follows: “The first issue had articles about racism, crisis pregnancy, stress, prayer, C.S. Lewis’ ideas about evil and free will, and reviews of religious music. In the next two issues, Wide Awake featured stories about homosexuality, Christian missionary work, and eating disorders, as well as music reviews and interviews with University professors.” Id., at 826. In contrast to Wide Awake’s emphasis on providing Christian commentary on such a diverse array of topics, Good News Club meetings are dominated by religious exhortation, see post, at 4–5 (Souter, J., dissenting). My position is therefore consistent with the Court’s decision in Rosenberger.


TOP

Dissent

GOOD NEWS CLUB, et al. , PETITIONERS v. MILFORD CENTRAL SCHOOL

on writ of certiorari to the united states court of appeals for the second circuit


[June 11, 2001]

Justice Stevens , dissenting.

The Milford Central School has invited the public to use its facilities for educational and recreational purposes, but not for “religious purposes.” Speech for “religious purposes” may reasonably be understood to encompass three different categories. First, there is religious speech that is simply speech about a particular topic from a religious point of view. The film in Lamb’s Chapel v. Center Moriches Union Free School Dist., 508 U. S. 384 (1993) , illustrates this category. See id. , at 388 (observing that the film series at issue in that case “would discuss Dr. [James] Dobson’s views on the undermining influences of the media that could only be counterbalanced by returning to traditional, Christian family values instilled at an early stage”). Second, there is religious speech that amounts to worship, or its equivalent. Our decision in Widmar v. Vincent, 454 U. S. 263 (1981) , concerned such speech. See id. , at 264–265 (describing the speech in question as involving “religious worship”). Third, there is an intermediate category that is aimed principally at proselytizing or inculcating belief in a particular religious faith.

A public entity may not generally exclude even religious worship from an open public forum. Id. , at 276. Similarly, a public entity that creates a limited public forum for the discussion of certain specified topics may not exclude a speaker simply because she approaches those topics from a religious point of view. Thus, in Lamb’s Chapel we held that a public school that permitted its facilities to be used for the discussion of family issues and child rearing could not deny access to speakers presenting a religious point of view on those issues. See Lamb’s Chapel , 508 U. S., at 393–394.

But, while a public entity may not censor speech about an authorized topic based on the point of view expressed by the speaker, it has broad discretion to “preserve the property under its control for the use to which it is lawfully dedicated.” Greer v. Spock, 424 U. S. 828, 836 (1976) ; see also Board of Ed. of Westside Community Schools (Dist. 66) v. Mergens, 496 U. S. 226, 275, n. 6 (1990) ( Stevens, J ., dissenting) (“A school’s extracurricular activities constitute a part of the school’s teaching mission, and the school accordingly must make ‘decisions concerning the content of those activities’ ” (quoting Widmar , 454 U. S., at 278 ( Stevens, J., concurring in judgment)). Accordingly, “control over access to a nonpublic forum can be based on subject matter and speaker identity so long as the distinctions drawn are reasonable in light of the purpose served by the forum and are viewpoint neutral.” Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U. S. 788, 806 (1985) . The novel question that this case presents concerns the constitutionality of a public school’s attempt to limit the scope of a public forum it has created. More specifically, the question is whether a school can, consistently with the First Amendment, create a limited public forum that admits the first type of religious speech without allowing the other two.

Distinguishing speech from a religious viewpoint, on the one hand, from religious proselytizing, on the other, is comparable to distinguishing meetings to discuss political issues from meetings whose principal purpose is to recruit new members to join a political organization. If a school decides to authorize after school discussions of current events in its classrooms, it may not exclude people from expressing their views simply because it dislikes their particular political opinions. But must it therefore allow organized political groups—for example, the Democratic Party, the Libertarian Party, or the Ku Klux Klan—to hold meetings, the principal purpose of which is not to discuss the current-events topic from their own unique point of view but rather to recruit others to join their respective groups? I think not. Such recruiting meetings may introduce divisiveness and tend to separate young children into cliques that undermine the school’s educational mission. Cf. Lehman v. Shaker Heights, 418 U. S. 298 (1974) (upholding a city’s refusal to allow “political advertising” on public transportation).

School officials may reasonably believe that evangelical meetings designed to convert children to a particular religious faith pose the same risk. And, just as a school may allow meetings to discuss current events from a political perspective without also allowing organized political recruitment, so too can a school allow discussion of topics such as moral development from a religious (or nonreligious) perspective without thereby opening its forum to religious proselytizing or worship. See, e.g. , Campbell v. St. Tammany Parish School Board , 231 F. 3d 937, 942 (CA5 2000) (“Under the Supreme Court’s jurisprudence, a government entity such as a school board has the opportunity to open its facilities to activity protected by the First Amendment, without inviting political or religious activities presented in a form that would disserve its efforts to maintain neutrality”). Moreover, any doubt on a question such as this should be resolved in a way that minimizes “intrusion by the Federal Government into the operation of our public schools,” Mergens , 496 U. S., at 290 ( Stevens, J ., dissenting); see also Epperson v. Arkansas, 393 U. S. 97, 104 (1968) (“Judicial interposition in the operation of the public school system of the Nation raises problems requiring care and restraint… . By and large, public education in our Nation is committed to the control of state and local authorities”).

The particular limitation of the forum at issue in this case is one that prohibits the use of the school’s facilities for “religious purposes.” It is clear that, by “religious purposes,” the school district did not intend to exclude all speech from a religious point of view. See App. N13–N15 (testimony of the superintendent for Milford schools indicating that the policy would permit people to teach “that man was created by God as described in the Book of Genesis” and that crime was caused by society’s “lack of faith in God”). Instead, it sought only to exclude religious speech whose principal goal is to “promote the gospel.” App. N18. In other words, the school sought to allow the first type of religious speech while excluding the second and third types. As long as this is done in an even handed manner, I see no constitutional violation in such an effort. 1 The line between the various categories of religious speech may be difficult to draw, but I think that the distinctions are valid, and that a school, particularly an elementary school, must be permitted to draw them. 2 Cf. Illinois ex rel. McCollum v. Board of Ed. of School Dist. No. 71, Champaign Cty., 333 U. S. 203, 231 (1948) (Frankfurter, J., concurring) (“In no activity of the State is it more vital to keep out divisive forces than in its schools …”).

This case is undoubtedly close. Nonetheless, regardless of whether the Good News Club’s activities amount to “worship,” it does seem clear, based on the facts in the record, that the school district correctly classified those activities as falling within the third category of religious speech and therefore beyond the scope of the school’s limited public forum. 3 In short, I am persuaded that the school district could (and did) permissibly exclude from its limited public forum proselytizing religious speech that does not rise to the level of actual worship. I would therefore affirm the judgment of the Court of Appeals.

Even if I agreed with Part II of the majority opinion, however, I would not reach out, as it does in Part IV, to decide a constitutional question that was not addressed by either the District Court or the Court of Appeals. Accordingly, I respectfully dissent.


Notes

1 The school district, for example, could not, consistently with its present policy, allow school facilities to be used by a group that affirmatively attempted to inculcate nonbelief in God or in the view that morality is wholly unrelated to belief in God. Nothing in the record, however, indicates that any such group was allowed to use school facilities.

2 “A perceptive observer sees a material difference between the light of day and the dark of night, and knows that difference to be a reality even though the two are separated not by a bright line but by a zone of twilight.” Buirkle v. Hanover Insurance Cos., 832 F. Supp. 469, 483 (Mass. 1993).

3 The majority elides the distinction between religious speech on a particular topic and religious speech that seeks primarily to inculcate belief. Thus, it relies on Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819 (1995) , as if that case involved precisely the same type of speech that is at issue here. But, while both Wide Awake, the organization in Rosenberger, and the Good News Club engage in a mixture of different types of religious speech, the Rosenberger Court clearly believed that the first type of religious speech predominated in Wide Awake. It described that group’s publications as follows: “The first issue had articles about racism, crisis pregnancy, stress, prayer, C.S. Lewis’ ideas about evil and free will, and reviews of religious music. In the next two issues, Wide Awake featured stories about homosexuality, Christian missionary work, and eating disorders, as well as music reviews and interviews with University professors.” Id., at 826. In contrast to Wide Awake’s emphasis on providing Christian commentary on such a diverse array of topics, Good News Club meetings are dominated by religious exhortation, see post, at 4–5 (Souter, J., dissenting). My position is therefore consistent with the Court’s decision in Rosenberger.


TOP

Dissent

GOOD NEWS CLUB, et al. , PETITIONERS v. MILFORD CENTRAL SCHOOL

on writ of certiorari to the united states court of appeals for the second circuit


[June 11, 2001]

Justice Stevens , dissenting.

The Milford Central School has invited the public to use its facilities for educational and recreational purposes, but not for “religious purposes.” Speech for “religious purposes” may reasonably be understood to encompass three different categories. First, there is religious speech that is simply speech about a particular topic from a religious point of view. The film in Lamb’s Chapel v. Center Moriches Union Free School Dist., 508 U. S. 384 (1993) , illustrates this category. See id. , at 388 (observing that the film series at issue in that case “would discuss Dr. [James] Dobson’s views on the undermining influences of the media that could only be counterbalanced by returning to traditional, Christian family values instilled at an early stage”). Second, there is religious speech that amounts to worship, or its equivalent. Our decision in Widmar v. Vincent, 454 U. S. 263 (1981) , concerned such speech. See id. , at 264–265 (describing the speech in question as involving “religious worship”). Third, there is an intermediate category that is aimed principally at proselytizing or inculcating belief in a particular religious faith.

A public entity may not generally exclude even religious worship from an open public forum. Id. , at 276. Similarly, a public entity that creates a limited public forum for the discussion of certain specified topics may not exclude a speaker simply because she approaches those topics from a religious point of view. Thus, in Lamb’s Chapel we held that a public school that permitted its facilities to be used for the discussion of family issues and child rearing could not deny access to speakers presenting a religious point of view on those issues. See Lamb’s Chapel , 508 U. S., at 393–394.

But, while a public entity may not censor speech about an authorized topic based on the point of view expressed by the speaker, it has broad discretion to “preserve the property under its control for the use to which it is lawfully dedicated.” Greer v. Spock, 424 U. S. 828, 836 (1976) ; see also Board of Ed. of Westside Community Schools (Dist. 66) v. Mergens, 496 U. S. 226, 275, n. 6 (1990) ( Stevens, J ., dissenting) (“A school’s extracurricular activities constitute a part of the school’s teaching mission, and the school accordingly must make ‘decisions concerning the content of those activities’ ” (quoting Widmar , 454 U. S., at 278 ( Stevens, J., concurring in judgment)). Accordingly, “control over access to a nonpublic forum can be based on subject matter and speaker identity so long as the distinctions drawn are reasonable in light of the purpose served by the forum and are viewpoint neutral.” Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U. S. 788, 806 (1985) . The novel question that this case presents concerns the constitutionality of a public school’s attempt to limit the scope of a public forum it has created. More specifically, the question is whether a school can, consistently with the First Amendment, create a limited public forum that admits the first type of religious speech without allowing the other two.

Distinguishing speech from a religious viewpoint, on the one hand, from religious proselytizing, on the other, is comparable to distinguishing meetings to discuss political issues from meetings whose principal purpose is to recruit new members to join a political organization. If a school decides to authorize after school discussions of current events in its classrooms, it may not exclude people from expressing their views simply because it dislikes their particular political opinions. But must it therefore allow organized political groups—for example, the Democratic Party, the Libertarian Party, or the Ku Klux Klan—to hold meetings, the principal purpose of which is not to discuss the current-events topic from their own unique point of view but rather to recruit others to join their respective groups? I think not. Such recruiting meetings may introduce divisiveness and tend to separate young children into cliques that undermine the school’s educational mission. Cf. Lehman v. Shaker Heights, 418 U. S. 298 (1974) (upholding a city’s refusal to allow “political advertising” on public transportation).

School officials may reasonably believe that evangelical meetings designed to convert children to a particular religious faith pose the same risk. And, just as a school may allow meetings to discuss current events from a political perspective without also allowing organized political recruitment, so too can a school allow discussion of topics such as moral development from a religious (or nonreligious) perspective without thereby opening its forum to religious proselytizing or worship. See, e.g. , Campbell v. St. Tammany Parish School Board , 231 F. 3d 937, 942 (CA5 2000) (“Under the Supreme Court’s jurisprudence, a government entity such as a school board has the opportunity to open its facilities to activity protected by the First Amendment, without inviting political or religious activities presented in a form that would disserve its efforts to maintain neutrality”). Moreover, any doubt on a question such as this should be resolved in a way that minimizes “intrusion by the Federal Government into the operation of our public schools,” Mergens , 496 U. S., at 290 ( Stevens, J ., dissenting); see also Epperson v. Arkansas, 393 U. S. 97, 104 (1968) (“Judicial interposition in the operation of the public school system of the Nation raises problems requiring care and restraint… . By and large, public education in our Nation is committed to the control of state and local authorities”).

The particular limitation of the forum at issue in this case is one that prohibits the use of the school’s facilities for “religious purposes.” It is clear that, by “religious purposes,” the school district did not intend to exclude all speech from a religious point of view. See App. N13–N15 (testimony of the superintendent for Milford schools indicating that the policy would permit people to teach “that man was created by God as described in the Book of Genesis” and that crime was caused by society’s “lack of faith in God”). Instead, it sought only to exclude religious speech whose principal goal is to “promote the gospel.” App. N18. In other words, the school sought to allow the first type of religious speech while excluding the second and third types. As long as this is done in an even handed manner, I see no constitutional violation in such an effort. 1 The line between the various categories of religious speech may be difficult to draw, but I think that the distinctions are valid, and that a school, particularly an elementary school, must be permitted to draw them. 2 Cf. Illinois ex rel. McCollum v. Board of Ed. of School Dist. No. 71, Champaign Cty., 333 U. S. 203, 231 (1948) (Frankfurter, J., concurring) (“In no activity of the State is it more vital to keep out divisive forces than in its schools …”).

This case is undoubtedly close. Nonetheless, regardless of whether the Good News Club’s activities amount to “worship,” it does seem clear, based on the facts in the record, that the school district correctly classified those activities as falling within the third category of religious speech and therefore beyond the scope of the school’s limited public forum. 3 In short, I am persuaded that the school district could (and did) permissibly exclude from its limited public forum proselytizing religious speech that does not rise to the level of actual worship. I would therefore affirm the judgment of the Court of Appeals.

Even if I agreed with Part II of the majority opinion, however, I would not reach out, as it does in Part IV, to decide a constitutional question that was not addressed by either the District Court or the Court of Appeals. Accordingly, I respectfully dissent.


Notes

1 The school district, for example, could not, consistently with its present policy, allow school facilities to be used by a group that affirmatively attempted to inculcate nonbelief in God or in the view that morality is wholly unrelated to belief in God. Nothing in the record, however, indicates that any such group was allowed to use school facilities.

2 “A perceptive observer sees a material difference between the light of day and the dark of night, and knows that difference to be a reality even though the two are separated not by a bright line but by a zone of twilight.” Buirkle v. Hanover Insurance Cos., 832 F. Supp. 469, 483 (Mass. 1993).

3 The majority elides the distinction between religious speech on a particular topic and religious speech that seeks primarily to inculcate belief. Thus, it relies on Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819 (1995) , as if that case involved precisely the same type of speech that is at issue here. But, while both Wide Awake, the organization in Rosenberger, and the Good News Club engage in a mixture of different types of religious speech, the Rosenberger Court clearly believed that the first type of religious speech predominated in Wide Awake. It described that group’s publications as follows: “The first issue had articles about racism, crisis pregnancy, stress, prayer, C.S. Lewis’ ideas about evil and free will, and reviews of religious music. In the next two issues, Wide Awake featured stories about homosexuality, Christian missionary work, and eating disorders, as well as music reviews and interviews with University professors.” Id., at 826. In contrast to Wide Awake’s emphasis on providing Christian commentary on such a diverse array of topics, Good News Club meetings are dominated by religious exhortation, see post, at 4–5 (Souter, J., dissenting). My position is therefore consistent with the Court’s decision in Rosenberger.


TOP

Dissent

GOOD NEWS CLUB, et al. , PETITIONERS v. MILFORD CENTRAL SCHOOL

on writ of certiorari to the united states court of appeals for the second circuit


[June 11, 2001]

Justice Stevens , dissenting.

The Milford Central School has invited the public to use its facilities for educational and recreational purposes, but not for “religious purposes.” Speech for “religious purposes” may reasonably be understood to encompass three different categories. First, there is religious speech that is simply speech about a particular topic from a religious point of view. The film in Lamb’s Chapel v. Center Moriches Union Free School Dist., 508 U. S. 384 (1993) , illustrates this category. See id. , at 388 (observing that the film series at issue in that case “would discuss Dr. [James] Dobson’s views on the undermining influences of the media that could only be counterbalanced by returning to traditional, Christian family values instilled at an early stage”). Second, there is religious speech that amounts to worship, or its equivalent. Our decision in Widmar v. Vincent, 454 U. S. 263 (1981) , concerned such speech. See id. , at 264–265 (describing the speech in question as involving “religious worship”). Third, there is an intermediate category that is aimed principally at proselytizing or inculcating belief in a particular religious faith.

A public entity may not generally exclude even religious worship from an open public forum. Id. , at 276. Similarly, a public entity that creates a limited public forum for the discussion of certain specified topics may not exclude a speaker simply because she approaches those topics from a religious point of view. Thus, in Lamb’s Chapel we held that a public school that permitted its facilities to be used for the discussion of family issues and child rearing could not deny access to speakers presenting a religious point of view on those issues. See Lamb’s Chapel , 508 U. S., at 393–394.

But, while a public entity may not censor speech about an authorized topic based on the point of view expressed by the speaker, it has broad discretion to “preserve the property under its control for the use to which it is lawfully dedicated.” Greer v. Spock, 424 U. S. 828, 836 (1976) ; see also Board of Ed. of Westside Community Schools (Dist. 66) v. Mergens, 496 U. S. 226, 275, n. 6 (1990) ( Stevens, J ., dissenting) (“A school’s extracurricular activities constitute a part of the school’s teaching mission, and the school accordingly must make ‘decisions concerning the content of those activities’ ” (quoting Widmar , 454 U. S., at 278 ( Stevens, J., concurring in judgment)). Accordingly, “control over access to a nonpublic forum can be based on subject matter and speaker identity so long as the distinctions drawn are reasonable in light of the purpose served by the forum and are viewpoint neutral.” Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U. S. 788, 806 (1985) . The novel question that this case presents concerns the constitutionality of a public school’s attempt to limit the scope of a public forum it has created. More specifically, the question is whether a school can, consistently with the First Amendment, create a limited public forum that admits the first type of religious speech without allowing the other two.

Distinguishing speech from a religious viewpoint, on the one hand, from religious proselytizing, on the other, is comparable to distinguishing meetings to discuss political issues from meetings whose principal purpose is to recruit new members to join a political organization. If a school decides to authorize after school discussions of current events in its classrooms, it may not exclude people from expressing their views simply because it dislikes their particular political opinions. But must it therefore allow organized political groups—for example, the Democratic Party, the Libertarian Party, or the Ku Klux Klan—to hold meetings, the principal purpose of which is not to discuss the current-events topic from their own unique point of view but rather to recruit others to join their respective groups? I think not. Such recruiting meetings may introduce divisiveness and tend to separate young children into cliques that undermine the school’s educational mission. Cf. Lehman v. Shaker Heights, 418 U. S. 298 (1974) (upholding a city’s refusal to allow “political advertising” on public transportation).

School officials may reasonably believe that evangelical meetings designed to convert children to a particular religious faith pose the same risk. And, just as a school may allow meetings to discuss current events from a political perspective without also allowing organized political recruitment, so too can a school allow discussion of topics such as moral development from a religious (or nonreligious) perspective without thereby opening its forum to religious proselytizing or worship. See, e.g. , Campbell v. St. Tammany Parish School Board , 231 F. 3d 937, 942 (CA5 2000) (“Under the Supreme Court’s jurisprudence, a government entity such as a school board has the opportunity to open its facilities to activity protected by the First Amendment, without inviting political or religious activities presented in a form that would disserve its efforts to maintain neutrality”). Moreover, any doubt on a question such as this should be resolved in a way that minimizes “intrusion by the Federal Government into the operation of our public schools,” Mergens , 496 U. S., at 290 ( Stevens, J ., dissenting); see also Epperson v. Arkansas, 393 U. S. 97, 104 (1968) (“Judicial interposition in the operation of the public school system of the Nation raises problems requiring care and restraint… . By and large, public education in our Nation is committed to the control of state and local authorities”).

The particular limitation of the forum at issue in this case is one that prohibits the use of the school’s facilities for “religious purposes.” It is clear that, by “religious purposes,” the school district did not intend to exclude all speech from a religious point of view. See App. N13–N15 (testimony of the superintendent for Milford schools indicating that the policy would permit people to teach “that man was created by God as described in the Book of Genesis” and that crime was caused by society’s “lack of faith in God”). Instead, it sought only to exclude religious speech whose principal goal is to “promote the gospel.” App. N18. In other words, the school sought to allow the first type of religious speech while excluding the second and third types. As long as this is done in an even handed manner, I see no constitutional violation in such an effort. 1 The line between the various categories of religious speech may be difficult to draw, but I think that the distinctions are valid, and that a school, particularly an elementary school, must be permitted to draw them. 2 Cf. Illinois ex rel. McCollum v. Board of Ed. of School Dist. No. 71, Champaign Cty., 333 U. S. 203, 231 (1948) (Frankfurter, J., concurring) (“In no activity of the State is it more vital to keep out divisive forces than in its schools …”).

This case is undoubtedly close. Nonetheless, regardless of whether the Good News Club’s activities amount to “worship,” it does seem clear, based on the facts in the record, that the school district correctly classified those activities as falling within the third category of religious speech and therefore beyond the scope of the school’s limited public forum. 3 In short, I am persuaded that the school district could (and did) permissibly exclude from its limited public forum proselytizing religious speech that does not rise to the level of actual worship. I would therefore affirm the judgment of the Court of Appeals.

Even if I agreed with Part II of the majority opinion, however, I would not reach out, as it does in Part IV, to decide a constitutional question that was not addressed by either the District Court or the Court of Appeals. Accordingly, I respectfully dissent.


Notes

1 The school district, for example, could not, consistently with its present policy, allow school facilities to be used by a group that affirmatively attempted to inculcate nonbelief in God or in the view that morality is wholly unrelated to belief in God. Nothing in the record, however, indicates that any such group was allowed to use school facilities.

2 “A perceptive observer sees a material difference between the light of day and the dark of night, and knows that difference to be a reality even though the two are separated not by a bright line but by a zone of twilight.” Buirkle v. Hanover Insurance Cos., 832 F. Supp. 469, 483 (Mass. 1993).

3 The majority elides the distinction between religious speech on a particular topic and religious speech that seeks primarily to inculcate belief. Thus, it relies on Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819 (1995) , as if that case involved precisely the same type of speech that is at issue here. But, while both Wide Awake, the organization in Rosenberger, and the Good News Club engage in a mixture of different types of religious speech, the Rosenberger Court clearly believed that the first type of religious speech predominated in Wide Awake. It described that group’s publications as follows: “The first issue had articles about racism, crisis pregnancy, stress, prayer, C.S. Lewis’ ideas about evil and free will, and reviews of religious music. In the next two issues, Wide Awake featured stories about homosexuality, Christian missionary work, and eating disorders, as well as music reviews and interviews with University professors.” Id., at 826. In contrast to Wide Awake’s emphasis on providing Christian commentary on such a diverse array of topics, Good News Club meetings are dominated by religious exhortation, see post, at 4–5 (Souter, J., dissenting). My position is therefore consistent with the Court’s decision in Rosenberger.


TOP

Dissent

GOOD NEWS CLUB, et al. , PETITIONERS v. MILFORD CENTRAL SCHOOL

on writ of certiorari to the united states court of appeals for the second circuit


[June 11, 2001]

Justice Stevens , dissenting.

The Milford Central School has invited the public to use its facilities for educational and recreational purposes, but not for “religious purposes.” Speech for “religious purposes” may reasonably be understood to encompass three different categories. First, there is religious speech that is simply speech about a particular topic from a religious point of view. The film in Lamb’s Chapel v. Center Moriches Union Free School Dist., 508 U. S. 384 (1993) , illustrates this category. See id. , at 388 (observing that the film series at issue in that case “would discuss Dr. [James] Dobson’s views on the undermining influences of the media that could only be counterbalanced by returning to traditional, Christian family values instilled at an early stage”). Second, there is religious speech that amounts to worship, or its equivalent. Our decision in Widmar v. Vincent, 454 U. S. 263 (1981) , concerned such speech. See id. , at 264–265 (describing the speech in question as involving “religious worship”). Third, there is an intermediate category that is aimed principally at proselytizing or inculcating belief in a particular religious faith.

A public entity may not generally exclude even religious worship from an open public forum. Id. , at 276. Similarly, a public entity that creates a limited public forum for the discussion of certain specified topics may not exclude a speaker simply because she approaches those topics from a religious point of view. Thus, in Lamb’s Chapel we held that a public school that permitted its facilities to be used for the discussion of family issues and child rearing could not deny access to speakers presenting a religious point of view on those issues. See Lamb’s Chapel , 508 U. S., at 393–394.

But, while a public entity may not censor speech about an authorized topic based on the point of view expressed by the speaker, it has broad discretion to “preserve the property under its control for the use to which it is lawfully dedicated.” Greer v. Spock, 424 U. S. 828, 836 (1976) ; see also Board of Ed. of Westside Community Schools (Dist. 66) v. Mergens, 496 U. S. 226, 275, n. 6 (1990) ( Stevens, J ., dissenting) (“A school’s extracurricular activities constitute a part of the school’s teaching mission, and the school accordingly must make ‘decisions concerning the content of those activities’ ” (quoting Widmar , 454 U. S., at 278 ( Stevens, J., concurring in judgment)). Accordingly, “control over access to a nonpublic forum can be based on subject matter and speaker identity so long as the distinctions drawn are reasonable in light of the purpose served by the forum and are viewpoint neutral.” Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U. S. 788, 806 (1985) . The novel question that this case presents concerns the constitutionality of a public school’s attempt to limit the scope of a public forum it has created. More specifically, the question is whether a school can, consistently with the First Amendment, create a limited public forum that admits the first type of religious speech without allowing the other two.

Distinguishing speech from a religious viewpoint, on the one hand, from religious proselytizing, on the other, is comparable to distinguishing meetings to discuss political issues from meetings whose principal purpose is to recruit new members to join a political organization. If a school decides to authorize after school discussions of current events in its classrooms, it may not exclude people from expressing their views simply because it dislikes their particular political opinions. But must it therefore allow organized political groups—for example, the Democratic Party, the Libertarian Party, or the Ku Klux Klan—to hold meetings, the principal purpose of which is not to discuss the current-events topic from their own unique point of view but rather to recruit others to join their respective groups? I think not. Such recruiting meetings may introduce divisiveness and tend to separate young children into cliques that undermine the school’s educational mission. Cf. Lehman v. Shaker Heights, 418 U. S. 298 (1974) (upholding a city’s refusal to allow “political advertising” on public transportation).

School officials may reasonably believe that evangelical meetings designed to convert children to a particular religious faith pose the same risk. And, just as a school may allow meetings to discuss current events from a political perspective without also allowing organized political recruitment, so too can a school allow discussion of topics such as moral development from a religious (or nonreligious) perspective without thereby opening its forum to religious proselytizing or worship. See, e.g. , Campbell v. St. Tammany Parish School Board , 231 F. 3d 937, 942 (CA5 2000) (“Under the Supreme Court’s jurisprudence, a government entity such as a school board has the opportunity to open its facilities to activity protected by the First Amendment, without inviting political or religious activities presented in a form that would disserve its efforts to maintain neutrality”). Moreover, any doubt on a question such as this should be resolved in a way that minimizes “intrusion by the Federal Government into the operation of our public schools,” Mergens , 496 U. S., at 290 ( Stevens, J ., dissenting); see also Epperson v. Arkansas, 393 U. S. 97, 104 (1968) (“Judicial interposition in the operation of the public school system of the Nation raises problems requiring care and restraint… . By and large, public education in our Nation is committed to the control of state and local authorities”).

The particular limitation of the forum at issue in this case is one that prohibits the use of the school’s facilities for “religious purposes.” It is clear that, by “religious purposes,” the school district did not intend to exclude all speech from a religious point of view. See App. N13–N15 (testimony of the superintendent for Milford schools indicating that the policy would permit people to teach “that man was created by God as described in the Book of Genesis” and that crime was caused by society’s “lack of faith in God”). Instead, it sought only to exclude religious speech whose principal goal is to “promote the gospel.” App. N18. In other words, the school sought to allow the first type of religious speech while excluding the second and third types. As long as this is done in an even handed manner, I see no constitutional violation in such an effort. 1 The line between the various categories of religious speech may be difficult to draw, but I think that the distinctions are valid, and that a school, particularly an elementary school, must be permitted to draw them. 2 Cf. Illinois ex rel. McCollum v. Board of Ed. of School Dist. No. 71, Champaign Cty., 333 U. S. 203, 231 (1948) (Frankfurter, J., concurring) (“In no activity of the State is it more vital to keep out divisive forces than in its schools …”).

This case is undoubtedly close. Nonetheless, regardless of whether the Good News Club’s activities amount to “worship,” it does seem clear, based on the facts in the record, that the school district correctly classified those activities as falling within the third category of religious speech and therefore beyond the scope of the school’s limited public forum. 3 In short, I am persuaded that the school district could (and did) permissibly exclude from its limited public forum proselytizing religious speech that does not rise to the level of actual worship. I would therefore affirm the judgment of the Court of Appeals.

Even if I agreed with Part II of the majority opinion, however, I would not reach out, as it does in Part IV, to decide a constitutional question that was not addressed by either the District Court or the Court of Appeals. Accordingly, I respectfully dissent.


Notes

1 The school district, for example, could not, consistently with its present policy, allow school facilities to be used by a group that affirmatively attempted to inculcate nonbelief in God or in the view that morality is wholly unrelated to belief in God. Nothing in the record, however, indicates that any such group was allowed to use school facilities.

2 “A perceptive observer sees a material difference between the light of day and the dark of night, and knows that difference to be a reality even though the two are separated not by a bright line but by a zone of twilight.” Buirkle v. Hanover Insurance Cos., 832 F. Supp. 469, 483 (Mass. 1993).

3 The majority elides the distinction between religious speech on a particular topic and religious speech that seeks primarily to inculcate belief. Thus, it relies on Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819 (1995) , as if that case involved precisely the same type of speech that is at issue here. But, while both Wide Awake, the organization in Rosenberger, and the Good News Club engage in a mixture of different types of religious speech, the Rosenberger Court clearly believed that the first type of religious speech predominated in Wide Awake. It described that group’s publications as follows: “The first issue had articles about racism, crisis pregnancy, stress, prayer, C.S. Lewis’ ideas about evil and free will, and reviews of religious music. In the next two issues, Wide Awake featured stories about homosexuality, Christian missionary work, and eating disorders, as well as music reviews and interviews with University professors.” Id., at 826. In contrast to Wide Awake’s emphasis on providing Christian commentary on such a diverse array of topics, Good News Club meetings are dominated by religious exhortation, see post, at 4–5 (Souter, J., dissenting). My position is therefore consistent with the Court’s decision in Rosenberger.


TOP

Dissent

GOOD NEWS CLUB, et al. , PETITIONERS v. MILFORD CENTRAL SCHOOL

on writ of certiorari to the united states court of appeals for the second circuit


[June 11, 2001]

Justice Stevens , dissenting.

The Milford Central School has invited the public to use its facilities for educational and recreational purposes, but not for “religious purposes.” Speech for “religious purposes” may reasonably be understood to encompass three different categories. First, there is religious speech that is simply speech about a particular topic from a religious point of view. The film in Lamb’s Chapel v. Center Moriches Union Free School Dist., 508 U. S. 384 (1993) , illustrates this category. See id. , at 388 (observing that the film series at issue in that case “would discuss Dr. [James] Dobson’s views on the undermining influences of the media that could only be counterbalanced by returning to traditional, Christian family values instilled at an early stage”). Second, there is religious speech that amounts to worship, or its equivalent. Our decision in Widmar v. Vincent, 454 U. S. 263 (1981) , concerned such speech. See id. , at 264–265 (describing the speech in question as involving “religious worship”). Third, there is an intermediate category that is aimed principally at proselytizing or inculcating belief in a particular religious faith.

A public entity may not generally exclude even religious worship from an open public forum. Id. , at 276. Similarly, a public entity that creates a limited public forum for the discussion of certain specified topics may not exclude a speaker simply because she approaches those topics from a religious point of view. Thus, in Lamb’s Chapel we held that a public school that permitted its facilities to be used for the discussion of family issues and child rearing could not deny access to speakers presenting a religious point of view on those issues. See Lamb’s Chapel , 508 U. S., at 393–394.

But, while a public entity may not censor speech about an authorized topic based on the point of view expressed by the speaker, it has broad discretion to “preserve the property under its control for the use to which it is lawfully dedicated.” Greer v. Spock, 424 U. S. 828, 836 (1976) ; see also Board of Ed. of Westside Community Schools (Dist. 66) v. Mergens, 496 U. S. 226, 275, n. 6 (1990) ( Stevens, J ., dissenting) (“A school’s extracurricular activities constitute a part of the school’s teaching mission, and the school accordingly must make ‘decisions concerning the content of those activities’ ” (quoting Widmar , 454 U. S., at 278 ( Stevens, J., concurring in judgment)). Accordingly, “control over access to a nonpublic forum can be based on subject matter and speaker identity so long as the distinctions drawn are reasonable in light of the purpose served by the forum and are viewpoint neutral.” Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U. S. 788, 806 (1985) . The novel question that this case presents concerns the constitutionality of a public school’s attempt to limit the scope of a public forum it has created. More specifically, the question is whether a school can, consistently with the First Amendment, create a limited public forum that admits the first type of religious speech without allowing the other two.

Distinguishing speech from a religious viewpoint, on the one hand, from religious proselytizing, on the other, is comparable to distinguishing meetings to discuss political issues from meetings whose principal purpose is to recruit new members to join a political organization. If a school decides to authorize after school discussions of current events in its classrooms, it may not exclude people from expressing their views simply because it dislikes their particular political opinions. But must it therefore allow organized political groups—for example, the Democratic Party, the Libertarian Party, or the Ku Klux Klan—to hold meetings, the principal purpose of which is not to discuss the current-events topic from their own unique point of view but rather to recruit others to join their respective groups? I think not. Such recruiting meetings may introduce divisiveness and tend to separate young children into cliques that undermine the school’s educational mission. Cf. Lehman v. Shaker Heights, 418 U. S. 298 (1974) (upholding a city’s refusal to allow “political advertising” on public transportation).

School officials may reasonably believe that evangelical meetings designed to convert children to a particular religious faith pose the same risk. And, just as a school may allow meetings to discuss current events from a political perspective without also allowing organized political recruitment, so too can a school allow discussion of topics such as moral development from a religious (or nonreligious) perspective without thereby opening its forum to religious proselytizing or worship. See, e.g. , Campbell v. St. Tammany Parish School Board , 231 F. 3d 937, 942 (CA5 2000) (“Under the Supreme Court’s jurisprudence, a government entity such as a school board has the opportunity to open its facilities to activity protected by the First Amendment, without inviting political or religious activities presented in a form that would disserve its efforts to maintain neutrality”). Moreover, any doubt on a question such as this should be resolved in a way that minimizes “intrusion by the Federal Government into the operation of our public schools,” Mergens , 496 U. S., at 290 ( Stevens, J ., dissenting); see also Epperson v. Arkansas, 393 U. S. 97, 104 (1968) (“Judicial interposition in the operation of the public school system of the Nation raises problems requiring care and restraint… . By and large, public education in our Nation is committed to the control of state and local authorities”).

The particular limitation of the forum at issue in this case is one that prohibits the use of the school’s facilities for “religious purposes.” It is clear that, by “religious purposes,” the school district did not intend to exclude all speech from a religious point of view. See App. N13–N15 (testimony of the superintendent for Milford schools indicating that the policy would permit people to teach “that man was created by God as described in the Book of Genesis” and that crime was caused by society’s “lack of faith in God”). Instead, it sought only to exclude religious speech whose principal goal is to “promote the gospel.” App. N18. In other words, the school sought to allow the first type of religious speech while excluding the second and third types. As long as this is done in an even handed manner, I see no constitutional violation in such an effort. 1 The line between the various categories of religious speech may be difficult to draw, but I think that the distinctions are valid, and that a school, particularly an elementary school, must be permitted to draw them. 2 Cf. Illinois ex rel. McCollum v. Board of Ed. of School Dist. No. 71, Champaign Cty., 333 U. S. 203, 231 (1948) (Frankfurter, J., concurring) (“In no activity of the State is it more vital to keep out divisive forces than in its schools …”).

This case is undoubtedly close. Nonetheless, regardless of whether the Good News Club’s activities amount to “worship,” it does seem clear, based on the facts in the record, that the school district correctly classified those activities as falling within the third category of religious speech and therefore beyond the scope of the school’s limited public forum. 3 In short, I am persuaded that the school district could (and did) permissibly exclude from its limited public forum proselytizing religious speech that does not rise to the level of actual worship. I would therefore affirm the judgment of the Court of Appeals.

Even if I agreed with Part II of the majority opinion, however, I would not reach out, as it does in Part IV, to decide a constitutional question that was not addressed by either the District Court or the Court of Appeals. Accordingly, I respectfully dissent.


Notes

1 The school district, for example, could not, consistently with its present policy, allow school facilities to be used by a group that affirmatively attempted to inculcate nonbelief in God or in the view that morality is wholly unrelated to belief in God. Nothing in the record, however, indicates that any such group was allowed to use school facilities.

2 “A perceptive observer sees a material difference between the light of day and the dark of night, and knows that difference to be a reality even though the two are separated not by a bright line but by a zone of twilight.” Buirkle v. Hanover Insurance Cos., 832 F. Supp. 469, 483 (Mass. 1993).

3 The majority elides the distinction between religious speech on a particular topic and religious speech that seeks primarily to inculcate belief. Thus, it relies on Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819 (1995) , as if that case involved precisely the same type of speech that is at issue here. But, while both Wide Awake, the organization in Rosenberger, and the Good News Club engage in a mixture of different types of religious speech, the Rosenberger Court clearly believed that the first type of religious speech predominated in Wide Awake. It described that group’s publications as follows: “The first issue had articles about racism, crisis pregnancy, stress, prayer, C.S. Lewis’ ideas about evil and free will, and reviews of religious music. In the next two issues, Wide Awake featured stories about homosexuality, Christian missionary work, and eating disorders, as well as music reviews and interviews with University professors.” Id., at 826. In contrast to Wide Awake’s emphasis on providing Christian commentary on such a diverse array of topics, Good News Club meetings are dominated by religious exhortation, see post, at 4–5 (Souter, J., dissenting). My position is therefore consistent with the Court’s decision in Rosenberger.


TOP

Dissent

GOOD NEWS CLUB, et al. , PETITIONERS v. MILFORD CENTRAL SCHOOL

on writ of certiorari to the united states court of appeals for the second circuit


[June 11, 2001]

Justice Stevens , dissenting.

The Milford Central School has invited the public to use its facilities for educational and recreational purposes, but not for “religious purposes.” Speech for “religious purposes” may reasonably be understood to encompass three different categories. First, there is religious speech that is simply speech about a particular topic from a religious point of view. The film in Lamb’s Chapel v. Center Moriches Union Free School Dist., 508 U. S. 384 (1993) , illustrates this category. See id. , at 388 (observing that the film series at issue in that case “would discuss Dr. [James] Dobson’s views on the undermining influences of the media that could only be counterbalanced by returning to traditional, Christian family values instilled at an early stage”). Second, there is religious speech that amounts to worship, or its equivalent. Our decision in Widmar v. Vincent, 454 U. S. 263 (1981) , concerned such speech. See id. , at 264–265 (describing the speech in question as involving “religious worship”). Third, there is an intermediate category that is aimed principally at proselytizing or inculcating belief in a particular religious faith.

A public entity may not generally exclude even religious worship from an open public forum. Id. , at 276. Similarly, a public entity that creates a limited public forum for the discussion of certain specified topics may not exclude a speaker simply because she approaches those topics from a religious point of view. Thus, in Lamb’s Chapel we held that a public school that permitted its facilities to be used for the discussion of family issues and child rearing could not deny access to speakers presenting a religious point of view on those issues. See Lamb’s Chapel , 508 U. S., at 393–394.

But, while a public entity may not censor speech about an authorized topic based on the point of view expressed by the speaker, it has broad discretion to “preserve the property under its control for the use to which it is lawfully dedicated.” Greer v. Spock, 424 U. S. 828, 836 (1976) ; see also Board of Ed. of Westside Community Schools (Dist. 66) v. Mergens, 496 U. S. 226, 275, n. 6 (1990) ( Stevens, J ., dissenting) (“A school’s extracurricular activities constitute a part of the school’s teaching mission, and the school accordingly must make ‘decisions concerning the content of those activities’ ” (quoting Widmar , 454 U. S., at 278 ( Stevens, J., concurring in judgment)). Accordingly, “control over access to a nonpublic forum can be based on subject matter and speaker identity so long as the distinctions drawn are reasonable in light of the purpose served by the forum and are viewpoint neutral.” Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U. S. 788, 806 (1985) . The novel question that this case presents concerns the constitutionality of a public school’s attempt to limit the scope of a public forum it has created. More specifically, the question is whether a school can, consistently with the First Amendment, create a limited public forum that admits the first type of religious speech without allowing the other two.

Distinguishing speech from a religious viewpoint, on the one hand, from religious proselytizing, on the other, is comparable to distinguishing meetings to discuss political issues from meetings whose principal purpose is to recruit new members to join a political organization. If a school decides to authorize after school discussions of current events in its classrooms, it may not exclude people from expressing their views simply because it dislikes their particular political opinions. But must it therefore allow organized political groups—for example, the Democratic Party, the Libertarian Party, or the Ku Klux Klan—to hold meetings, the principal purpose of which is not to discuss the current-events topic from their own unique point of view but rather to recruit others to join their respective groups? I think not. Such recruiting meetings may introduce divisiveness and tend to separate young children into cliques that undermine the school’s educational mission. Cf. Lehman v. Shaker Heights, 418 U. S. 298 (1974) (upholding a city’s refusal to allow “political advertising” on public transportation).

School officials may reasonably believe that evangelical meetings designed to convert children to a particular religious faith pose the same risk. And, just as a school may allow meetings to discuss current events from a political perspective without also allowing organized political recruitment, so too can a school allow discussion of topics such as moral development from a religious (or nonreligious) perspective without thereby opening its forum to religious proselytizing or worship. See, e.g. , Campbell v. St. Tammany Parish School Board , 231 F. 3d 937, 942 (CA5 2000) (“Under the Supreme Court’s jurisprudence, a government entity such as a school board has the opportunity to open its facilities to activity protected by the First Amendment, without inviting political or religious activities presented in a form that would disserve its efforts to maintain neutrality”). Moreover, any doubt on a question such as this should be resolved in a way that minimizes “intrusion by the Federal Government into the operation of our public schools,” Mergens , 496 U. S., at 290 ( Stevens, J ., dissenting); see also Epperson v. Arkansas, 393 U. S. 97, 104 (1968) (“Judicial interposition in the operation of the public school system of the Nation raises problems requiring care and restraint… . By and large, public education in our Nation is committed to the control of state and local authorities”).

The particular limitation of the forum at issue in this case is one that prohibits the use of the school’s facilities for “religious purposes.” It is clear that, by “religious purposes,” the school district did not intend to exclude all speech from a religious point of view. See App. N13–N15 (testimony of the superintendent for Milford schools indicating that the policy would permit people to teach “that man was created by God as described in the Book of Genesis” and that crime was caused by society’s “lack of faith in God”). Instead, it sought only to exclude religious speech whose principal goal is to “promote the gospel.” App. N18. In other words, the school sought to allow the first type of religious speech while excluding the second and third types. As long as this is done in an even handed manner, I see no constitutional violation in such an effort. 1 The line between the various categories of religious speech may be difficult to draw, but I think that the distinctions are valid, and that a school, particularly an elementary school, must be permitted to draw them. 2 Cf. Illinois ex rel. McCollum v. Board of Ed. of School Dist. No. 71, Champaign Cty., 333 U. S. 203, 231 (1948) (Frankfurter, J., concurring) (“In no activity of the State is it more vital to keep out divisive forces than in its schools …”).

This case is undoubtedly close. Nonetheless, regardless of whether the Good News Club’s activities amount to “worship,” it does seem clear, based on the facts in the record, that the school district correctly classified those activities as falling within the third category of religious speech and therefore beyond the scope of the school’s limited public forum. 3 In short, I am persuaded that the school district could (and did) permissibly exclude from its limited public forum proselytizing religious speech that does not rise to the level of actual worship. I would therefore affirm the judgment of the Court of Appeals.

Even if I agreed with Part II of the majority opinion, however, I would not reach out, as it does in Part IV, to decide a constitutional question that was not addressed by either the District Court or the Court of Appeals. Accordingly, I respectfully dissent.


Notes

1 The school district, for example, could not, consistently with its present policy, allow school facilities to be used by a group that affirmatively attempted to inculcate nonbelief in God or in the view that morality is wholly unrelated to belief in God. Nothing in the record, however, indicates that any such group was allowed to use school facilities.

2 “A perceptive observer sees a material difference between the light of day and the dark of night, and knows that difference to be a reality even though the two are separated not by a bright line but by a zone of twilight.” Buirkle v. Hanover Insurance Cos., 832 F. Supp. 469, 483 (Mass. 1993).

3 The majority elides the distinction between religious speech on a particular topic and religious speech that seeks primarily to inculcate belief. Thus, it relies on Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819 (1995) , as if that case involved precisely the same type of speech that is at issue here. But, while both Wide Awake, the organization in Rosenberger, and the Good News Club engage in a mixture of different types of religious speech, the Rosenberger Court clearly believed that the first type of religious speech predominated in Wide Awake. It described that group’s publications as follows: “The first issue had articles about racism, crisis pregnancy, stress, prayer, C.S. Lewis’ ideas about evil and free will, and reviews of religious music. In the next two issues, Wide Awake featured stories about homosexuality, Christian missionary work, and eating disorders, as well as music reviews and interviews with University professors.” Id., at 826. In contrast to Wide Awake’s emphasis on providing Christian commentary on such a diverse array of topics, Good News Club meetings are dominated by religious exhortation, see post, at 4–5 (Souter, J., dissenting). My position is therefore consistent with the Court’s decision in Rosenberger.


TOP

Dissent

GOOD NEWS CLUB, et al. , PETITIONERS v. MILFORD CENTRAL SCHOOL

on writ of certiorari to the united states court of appeals for the second circuit


[June 11, 2001]

Justice Stevens , dissenting.

The Milford Central School has invited the public to use its facilities for educational and recreational purposes, but not for “religious purposes.” Speech for “religious purposes” may reasonably be understood to encompass three different categories. First, there is religious speech that is simply speech about a particular topic from a religious point of view. The film in Lamb’s Chapel v. Center Moriches Union Free School Dist., 508 U. S. 384 (1993) , illustrates this category. See id. , at 388 (observing that the film series at issue in that case “would discuss Dr. [James] Dobson’s views on the undermining influences of the media that could only be counterbalanced by returning to traditional, Christian family values instilled at an early stage”). Second, there is religious speech that amounts to worship, or its equivalent. Our decision in Widmar v. Vincent, 454 U. S. 263 (1981) , concerned such speech. See id. , at 264–265 (describing the speech in question as involving “religious worship”). Third, there is an intermediate category that is aimed principally at proselytizing or inculcating belief in a particular religious faith.

A public entity may not generally exclude even religious worship from an open public forum. Id. , at 276. Similarly, a public entity that creates a limited public forum for the discussion of certain specified topics may not exclude a speaker simply because she approaches those topics from a religious point of view. Thus, in Lamb’s Chapel we held that a public school that permitted its facilities to be used for the discussion of family issues and child rearing could not deny access to speakers presenting a religious point of view on those issues. See Lamb’s Chapel , 508 U. S., at 393–394.

But, while a public entity may not censor speech about an authorized topic based on the point of view expressed by the speaker, it has broad discretion to “preserve the property under its control for the use to which it is lawfully dedicated.” Greer v. Spock, 424 U. S. 828, 836 (1976) ; see also Board of Ed. of Westside Community Schools (Dist. 66) v. Mergens, 496 U. S. 226, 275, n. 6 (1990) ( Stevens, J ., dissenting) (“A school’s extracurricular activities constitute a part of the school’s teaching mission, and the school accordingly must make ‘decisions concerning the content of those activities’ ” (quoting Widmar , 454 U. S., at 278 ( Stevens, J., concurring in judgment)). Accordingly, “control over access to a nonpublic forum can be based on subject matter and speaker identity so long as the distinctions drawn are reasonable in light of the purpose served by the forum and are viewpoint neutral.” Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U. S. 788, 806 (1985) . The novel question that this case presents concerns the constitutionality of a public school’s attempt to limit the scope of a public forum it has created. More specifically, the question is whether a school can, consistently with the First Amendment, create a limited public forum that admits the first type of religious speech without allowing the other two.

Distinguishing speech from a religious viewpoint, on the one hand, from religious proselytizing, on the other, is comparable to distinguishing meetings to discuss political issues from meetings whose principal purpose is to recruit new members to join a political organization. If a school decides to authorize after school discussions of current events in its classrooms, it may not exclude people from expressing their views simply because it dislikes their particular political opinions. But must it therefore allow organized political groups—for example, the Democratic Party, the Libertarian Party, or the Ku Klux Klan—to hold meetings, the principal purpose of which is not to discuss the current-events topic from their own unique point of view but rather to recruit others to join their respective groups? I think not. Such recruiting meetings may introduce divisiveness and tend to separate young children into cliques that undermine the school’s educational mission. Cf. Lehman v. Shaker Heights, 418 U. S. 298 (1974) (upholding a city’s refusal to allow “political advertising” on public transportation).

School officials may reasonably believe that evangelical meetings designed to convert children to a particular religious faith pose the same risk. And, just as a school may allow meetings to discuss current events from a political perspective without also allowing organized political recruitment, so too can a school allow discussion of topics such as moral development from a religious (or nonreligious) perspective without thereby opening its forum to religious proselytizing or worship. See, e.g. , Campbell v. St. Tammany Parish School Board , 231 F. 3d 937, 942 (CA5 2000) (“Under the Supreme Court’s jurisprudence, a government entity such as a school board has the opportunity to open its facilities to activity protected by the First Amendment, without inviting political or religious activities presented in a form that would disserve its efforts to maintain neutrality”). Moreover, any doubt on a question such as this should be resolved in a way that minimizes “intrusion by the Federal Government into the operation of our public schools,” Mergens , 496 U. S., at 290 ( Stevens, J ., dissenting); see also Epperson v. Arkansas, 393 U. S. 97, 104 (1968) (“Judicial interposition in the operation of the public school system of the Nation raises problems requiring care and restraint… . By and large, public education in our Nation is committed to the control of state and local authorities”).

The particular limitation of the forum at issue in this case is one that prohibits the use of the school’s facilities for “religious purposes.” It is clear that, by “religious purposes,” the school district did not intend to exclude all speech from a religious point of view. See App. N13–N15 (testimony of the superintendent for Milford schools indicating that the policy would permit people to teach “that man was created by God as described in the Book of Genesis” and that crime was caused by society’s “lack of faith in God”). Instead, it sought only to exclude religious speech whose principal goal is to “promote the gospel.” App. N18. In other words, the school sought to allow the first type of religious speech while excluding the second and third types. As long as this is done in an even handed manner, I see no constitutional violation in such an effort. 1 The line between the various categories of religious speech may be difficult to draw, but I think that the distinctions are valid, and that a school, particularly an elementary school, must be permitted to draw them. 2 Cf. Illinois ex rel. McCollum v. Board of Ed. of School Dist. No. 71, Champaign Cty., 333 U. S. 203, 231 (1948) (Frankfurter, J., concurring) (“In no activity of the State is it more vital to keep out divisive forces than in its schools …”).

This case is undoubtedly close. Nonetheless, regardless of whether the Good News Club’s activities amount to “worship,” it does seem clear, based on the facts in the record, that the school district correctly classified those activities as falling within the third category of religious speech and therefore beyond the scope of the school’s limited public forum. 3 In short, I am persuaded that the school district could (and did) permissibly exclude from its limited public forum proselytizing religious speech that does not rise to the level of actual worship. I would therefore affirm the judgment of the Court of Appeals.

Even if I agreed with Part II of the majority opinion, however, I would not reach out, as it does in Part IV, to decide a constitutional question that was not addressed by either the District Court or the Court of Appeals. Accordingly, I respectfully dissent.


Notes

1 The school district, for example, could not, consistently with its present policy, allow school facilities to be used by a group that affirmatively attempted to inculcate nonbelief in God or in the view that morality is wholly unrelated to belief in God. Nothing in the record, however, indicates that any such group was allowed to use school facilities.

2 “A perceptive observer sees a material difference between the light of day and the dark of night, and knows that difference to be a reality even though the two are separated not by a bright line but by a zone of twilight.” Buirkle v. Hanover Insurance Cos., 832 F. Supp. 469, 483 (Mass. 1993).

3 The majority elides the distinction between religious speech on a particular topic and religious speech that seeks primarily to inculcate belief. Thus, it relies on Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819 (1995) , as if that case involved precisely the same type of speech that is at issue here. But, while both Wide Awake, the organization in Rosenberger, and the Good News Club engage in a mixture of different types of religious speech, the Rosenberger Court clearly believed that the first type of religious speech predominated in Wide Awake. It described that group’s publications as follows: “The first issue had articles about racism, crisis pregnancy, stress, prayer, C.S. Lewis’ ideas about evil and free will, and reviews of religious music. In the next two issues, Wide Awake featured stories about homosexuality, Christian missionary work, and eating disorders, as well as music reviews and interviews with University professors.” Id., at 826. In contrast to Wide Awake’s emphasis on providing Christian commentary on such a diverse array of topics, Good News Club meetings are dominated by religious exhortation, see post, at 4–5 (Souter, J., dissenting). My position is therefore consistent with the Court’s decision in Rosenberger.