Is Worship a Unique Subject or a Way of Approaching Many Different Subjects? Two Recent Decisions That Attempt to Answer This Question Set the Second and Ninth Circuits on a Course Toward State Entanglement With Religion - John Tyler

• Publication year: 2008

Comment

Is Worship a Unique Subject or a Way of Approaching Many Different Subjects? Two Recent Decisions that Attempt to Answer This Question Set the Second and Ninth Circuits on a Course Toward State Entanglement With Religion

I. Introduction

Does exclusion of worship services from a limited public forum constitute discrimination on the basis of viewpoint or subject matter? Is worship a unique subject matter or a way of expressing views on many different subjects? And if worship is a unique subject matter, what expressive activities fall within that category? In other words, what is the legal definition of worship?¹

These are the questions that the United States Supreme Court's seminal decision in Good News Club v. Milford Central School² left unanswered. Good News Club was a case from New York that involved a constitutional challenge to the local school board's decision to bar a Bible study group called the Good News Club from meeting on school property after class.³ The Court held that because (1) the school board had opened school property to activities with the purpose of developing the morals and character of students and (2) the activities of the Good News Club fulfilled this purpose, the club could not be denied access merely because it addressed this subject from a religious viewpoint.⁴ While most of the reasoning the Court offered in support of its holding in Good News Club was straightforward, the Court, in a footnote, made one particularly vague and puzzling statement:

Despite Milford's insistence that the Club's activities constitute "religious worship," the Court of Appeals made no such determination. It did compare the Club's activities to "religious worship," but ultimately it concluded merely that the Club's activities "fall outside the bounds of pure moral and character development." In any event, we conclude that the Club's activities do not constitute mere religious worship, divorced from any teaching of moral values.⁵

To two courts, the United States Courts of Appeals for the Ninth and the Second Circuit, this passage indicated that the Supreme Court recognized a legal distinction, a sort of dichotomy, between religious worship and speech from a religious viewpoint addressed to at least one of a limited public forum's permitted topics.

From this premise that worship is distinguishable from speech addressing a secular topic from a religious perspective, the Ninth Circuit, in Faith Center Church Evangelistic Ministries v. Glover,⁶ and the Second Circuit, in Bronx Household of Faith v. Board of Education of New York (Bronx Household III),⁷ both held that worship is a distinct category of speech that may be excluded from a limited public forum on the basis of subject matter.⁸ However, neither court crafted or cited a workable legal definition of this worship category of speech. Instead, both courts relied on the fact that the parties in both cases described their activities as worship.⁹ Thus, while future courts may look to these cases as precedent for the proposition that worship is a category of speech that the government may exclude from a limited public forum on the basis of subject matter, they will find that these cases offer little guidance on how to identify what speech falls within this worship category, short of relying on a group's self-description of its activities. In the inevitable case of a group that does not describe its activities as worship, the door is now open for a district court within the Second or Ninth Circuit to conduct a probing, unguided inquiry into the religious activities of private individuals. This presents a real danger of state entanglement in religion.

In addition to the conclusion that worship is legally distinguishable from other religious speech on the basis of subject matter, one other similarity between these two cases is the state officials' shared motive for denying these groups access to the forum. The state officials were concerned that an objective observer of the groups' expressive activities would perceive a state endorsement of religion.¹⁰ In other words, they argued that these content-based speech restrictions were necessary to avoid an Establishment Clause¹¹ violation under the Endorsement Test approach.¹² Thus, these cases illustrate the purported tension between the Free Speech, Free Exercise, and Establishment Clauses of the First Amendment,¹³ as well as the ongoing debate over whether private speech on public property can violate the Establishment Clause.

Section II of this Comment provides an overview of forum analysis, which is crucial to these decisions. This anslysis is vital because the category (or, in the Court's language, "for a") a government-owned property falls into determines the sort of speech restrictions the government may impose. For example, the government may impose subject-matter-based restrictions on speech in a limited public forum or nonpublic forum, not in a traditional public forum or designated public forum. Section III describes the Lemon test¹⁴ and looks at different approaches to the Establishment Clause. Section IV examines the battleground for most First Amendment challenges to restrictions on speech in a limited public forum: public schools. The line of cases dealing with religious groups seeking access to public schools best illustrates the methodology of forum analysis and how courts have dealt with the conflict between the Free Speech, Free Exercise, and Establishment Clauses of the First Amendment. Section V analyzes Good News Club, the case representing the culmination of the line of cases addressing the access of religious groups to schools. Section VI covers the recent decisions in Faith Center Church and Bronx Household III that purport to recognize worship as a distinct subject matter. Section VII considers the implications of these two decisions and suggests that the courts should steer away from the course set by these two decisions. Finally, Section VIII presents the conclusions of the analysis.

II. First Amendment Forum Analysis: The Classification of Government-Owned Property Determines the Type of Speech Restrictions That the State May Impose

The First Amendment's protection of expression from government restriction is not absolute.¹⁵ Certain categories of expressive activity are not protected from government restriction (so long as these restrictions are viewpoint neutral), such as obscenity, fighting words, and incitement.¹⁶ on any government-owned property, expression falling into these categories may be restricted.¹⁷ For expressive activity that does not fall into these categories and that occurs on government-owned property, the level of protection the expressive activity receives depends on the classification of that government-owned property.¹⁸ The Court terms these classes of government-owned property "fora."¹⁹

In both of the cases examined here, the government-owned property involved was classified as a limited public forum.²⁰ Therefore, an understanding of the nature of a limited public forum is necessary to make sense of the analysis in these cases.²¹

Limited public for a are a subset of designated public fora.²² In a limited public forum, the government opens a nonpublic forum only to certain groups or certain topics and purposes.²³ The government may restrict certain expression in a limited public forum on the basis of subject matter or topic so long as this content-based restriction is viewpoint neutral and reasonable in light ofthe purpose ofthe forum.²⁴ However, "once the government 'allows expressive activities of a certain genre, it may not selectively deny access for other activities of that genre.'"²⁵

III. The Establishment Clause: One Clause, Many Tests

The Establishment Clause of the First Amendment simply states: "Congress shall make no law respecting an establishment ofreligion."²⁶ Efforts to interpret and apply this little phrase have divided the Supreme Court into several camps that each propound different approaches to the Establishment Clause. With the recent additions to the bench, it will be interesting to see which test prevails.²⁷

A. Lemon Test

The oldest recognized test, the much-maligned and criticized Lemon test, was announced by Chief Justice Berger in Lemon v. Kurtzman.²⁸ It is a three-part test that provides: (1) "[T]he statute must have a secular legislative purpose"; (2) "[The statute's] principal or primary effect must be one that neither advances nor inhibits religion"; and (3) "[T]he statute must not foster 'an excessive government entanglement with religion.'"²⁹ Although still officially a three-part test, as Justice O'Connor observed in Zelman v. Simmons-Harris,³⁰ the Court has in practice "folded the entanglement inquiry into the primary effect inquiry."³¹

Some Supreme Court Justices would like to see this test discarded. Among them, none is more vehement (and vituperative) in expressing disdain for this test than Justice Scalia. In Justice Scalia's view, the test is applied in an arbitrary and unprincipled way. He contends that the Court invokes the test to strike down government practices it does not support but simply ignores the test when it would forbid a government action it does support.³² In particular, Justice Scalia finds the purpose prong of the test to be illogical and unworkable. As he explained in Church of the Lukumi Babalu Aye, Inc. v. City ofHialeah,³³ "[I]t is virtually impossible to determine the singular 'motive' of a collective legislative body, and this Court has a long tradition of refraining from such inquiries."³⁴ Despite all the criticism (and even vitriol) at the Lemon test over the years, the test survives as the official standard for determining whether a state action violates the Establishment Clause.³⁵

B. Endorsement Test

While not an official test, the endorsement test has garnered the support of a majority of Supreme Court Justices in a number of decisions.³⁶ The endorsement test is credited to...