October 23, 2012

Featured Cases

Good News Club v. Milford Central School, Continued

Milford's best argument may indeed be the young age of some of the children within its school environment. Past equal-access cases have all arisen in the secondary or higher education context. Nevertheless, age is arguably only relevant if there is, in fact, evidence of improper establishment -- that is, coerced or endorsed belief. Here, all of the students participating in the Club do so only with the express written permission of their parents, and given the well-established school policies that make school resources available to many youth groups, a reasonable, and reasonably informed, observer is unlikely to see either student participation or equality of treatment as endorsement or favoritism.

Nevertheless, Milford is surely right that some children under 12 may erroneously assume that everything that occurs in a school is by school authority. Will the Court therefore feel constrained to exclude parentally permitted religious speech activity to satisfy the inexperience of the youngest or least informed child in the school house? This would seem improbable given the Court's unwillingness to allow even adult speech to be limited or channeled to protect young children. See, e.g., United States v. Playboy Entertainment Group, 120 S.Ct. 1878 (2000) (invalidating a cable channeling requirement that restricted sexually explicit material to later hours because it was not "the least restrictive" way to prevent young people from encountering sexually explicit material). But then, the religion clause cases do not always parallel developments on the speech side of the First Amendment ledger.

If the Court is closely divided on the facts presented, Justice O'Connor’s perspective will likely prove pivotal once again. Justice O’Connor accepted equality of treatment for religious speakers in Rosenberger, but her acceptance was more fact specific than it was categorical, and turned on evidence that the government took prudent steps to separate itself from the private religious speech. Perhaps, then, the essential question will be whether the school has retained a sufficiently non-endorsing, neutral stance when the Good News Club reaches students only after regular hours, with parental permission and in a context of sharing facilities with the 4-H Club, the Scouts, and others.

Whether or not the school is required to do more to distance itself from any inferred endorsement -- by way of posted disclaimers or additional notices to nonparticipating parents -- it is highly doubtful whether the Court will want to perpetuate the content-based distinctions suggested by the appellate court. Federal judges are expected to play many roles, but attempting the nuanced differentiation of "moral instruction with a religious perspective" from "religious instruction" is not comfortably one of them. Indeed, even contemplating such distinction is theologically perilous, because while ethics and religion are distinct subjects for some religions, for the adherents of other mainstream religions (including Judaism and Christianity), ethics and religion are inseparable. The Second Circuit presupposed that morality is independent from divine will, and that presupposition itself can be argued to be more of an "endorsement" than a decision that Milford must treat its student clubs similarly.

Like all religion cases, the issues here are sensitive, important, and difficult. Of course, given the difficulty, some wag might be tempted to say that there is good news for the justices: if they "trust in the Lord ... He shall direct their paths." Or so the Book of Proverbs - at least - would confidently have them believe. But if the Justices came to visit after school hours, would the Justices be allowed to read that Book with a student club in Milford?

Attorneys for the Parties
For Good News Club, et al.
(Thomas Marcelle (518) 475-0806)

For Milford Central School
(Frank W. Miller (315) 437-7600)

Amicus Briefs
In Support of the Good News Club, et al.
The American Center for Law and Justice, Focus on the Family, and the Ethics and Religious Liberty Commission of the Southern Baptist Convention (Jay Alan Sekulow (202) 337-2273)
The States of Alabama, Iowa, Louisiana, Mississippi, Nebraska, Ohio, South Carolina, Tennessee, Texas, Utah, and Virginia (Charles B. Campbell (334) 242-7300)
Liberty Legal Institute (John L. Carter (703) 549-0049)
Child Evangelism Fellowship, Inc., Mae Culbertson, Ladette Armstrong, Marsha Hall, Mary Tommila, Family Research Council, Fellowship of Christian Athletes, and Campus Crusade for Christ (Gregory S. Baylor (703) 642-1070)
The Solidarity Center for Law and Justice, P.C. ( James P. Kelley, III; (770) 392-6079)
20 Theologians and Scholars of Religion (Michael W. McConnell (312) 782-0600)
National Jewish Commission on Law and Public Affairs (Nathan Lewin (202) 293-6400)
Christian Legal Society and Union of Orthodox Jewish Congregations of America (Carl H. Esbeck (703)642-1070)
National Council of Churches, et al. (Gene C. Schaerr (202) 736-8000)
Wallbuilders, Inc. (Barry C. Hodge (757) 463-6133)
Sally Campbell (Brett M. Kavanaugh (202) 879-5043)
Douglas Laycock (Douglas Laycock (512) 232-1341)
Carol Hood (Kevin J. Hasson (202) 955-0095)
Northstar Legal Center and Bronx Household of Faith (Jordan W. Lorence (703) 359-8619)
Liberty Counsel (Mathew D. Staver (407) 875-2100)
Elliott Abrams, et al. (Michael W. McConnell (312) 782-0600)

In Support of Milford Central School
New York State School Boards Association (Jay Worona (518)465-3474)
Anti-Defamation League, et al. (Jeffrey R. Babbin (203) 498-4400)
National School Boards Association, et al. (Julie K. Underwood (703) 838-6722)
Americans United for Separation of Church and State, et al. (Ayesha N. Khan (202) 466-3234)
American Jewish Congress (Marc D. Stern (212) 360-1545)

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