OCTOBER TERM, 1992
Syllabus
LAMB'S CHAPEL ET AL.
v. CENTER MORICHES UNION FREE SCHOOL
DISTRICT ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT
No. 91-2024. Argued February 24, 1993-Decided June 7, 1993
New York law authorizes local school boards to adopt reasonable
regulations permitting the after-hours use of school property for
10 specified purposes, not including meetings for religious
purposes. Pursuant to this law, respondent school board (District)
issued rules and regulations allowing,
inter alia, social,
civic, and recreational uses of its schools (Rule 10), but
prohibiting use by any group for religious purposes (Rule 7). After
the District refused two requests by petitioners, an evangelical
church and its pastor (Church), to use school facilities for a
religious oriented film series on family values and child rearing
on the ground that the film series appeared to be church related,
the Church filed suit in the District Court, claiming that the
District's actions violated, among other things, the First
Amendment's Freedom of Speech Clause. The court granted summary
judgment to the District, and the Court of Appeals affirmed. It
reasoned that the school property, as a "limited public forum" open
only for designated purposes, remained nonpublic except for the
specified purposes, and ruled that the exclusion of the Church's
film was reasonable and viewpoint neutral.
Held: Denying the Church access to school premises to
exhibit the film series violates the Freedom of Speech Clause. Pp.
390-397.
(a) There is no question that the District may legally preserve
the property under its control and need not have permitted
after-hours use for any of the uses permitted under state law. This
Court need not address the issue whether Rule 10, by opening the
property to a wide variety of communicative purposes, has opened
the property for religious uses, because, even if the District has
not opened its property for such uses, Rule 7 has been
unconstitutionally applied in this case. Access to a nonpublic
forum can be based on subject matter or speaker identity so long as
the distinctions drawn are reasonable and viewpoint neutral.
Cornelius v.
NAACP Legal Defense and Ed. Fund, Inc.,
473 U. S. 788, 806. That Rule 7 treats all religions and
religious purposes alike does not make its application in this case
viewpoint neutral, however, for it discriminates on the basis of
viewpoint by permitting school property to be used for the
presentation of all views about family issues and child rearing
except those dealing with the subject from a religious
385
standpoint. Denial on this basis is plainly invalid under the
holding in
Cornelius, supra, at 806, that the government
violates the First Amendment when it denies access to a speaker
solely to suppress the point of view he espouses on an otherwise
includible subject. Pp. 390-394.
(b) Permitting District property to be used to exhibit the film
series would not have been an establishment of religion under the
three-part test articulated in
Lemon v.
Kurtzman,
403 U. S. 602.
Since the series would not have been shown during school hours,
would not have been sponsored by the school, and would have been
open to the public, there would be no realistic danger that the
community would think that the District was endorsing religion or
any particular creed, and any benefit to religion or the Church
would have been incidental.
Widmar v.
Vincent,
454 U. S. 263,
271-272. Nor is there anything in the record to support the claim
that the exclusion was justified on the ground that allowing access
to a "radical" church would lead to threats of public unrest and
violence. In addition, the Court of Appeals' judgment was not based
on the justification proffered here that the access rules' purpose
is to promote the interests of the general public rather than
sectarian or other private interests. Moreover, that there was no
express finding below that the Church's application would have been
granted absent the religious connection is beside the point for the
purposes of this opinion, which is concerned with the validity of
the stated reason for denying the application, namely, that the
film series appeared to be church related. Pp.395-397.
959 F.2d
381, reversed.
WHITE, J., delivered the opinion of the Court, in which
REHNQUIST, C. J., and BLACKMUN, STEVENS, O'CONNOR, and SOUTER, JJ.,
joined. KENNEDY, J., filed an opinion concurring in part and
concurring in the judgment,
post, p. 397. SCALIA, J., filed
an opinion concurring in the judgment, in which THOMAS, J., joined,
post, p. 397.
Jay Alan Sekulow argued the cause for petitioners. With him on
the briefs were Keith A. Fournier, Mark N. Troobnick, James M.
Henderson, Sr., Jordan W Lorence, Thomas Patrick Monaghan, Walter
M. Weber, and John Stepanovich.
John W Hoefling argued the cause for respondents. With
him on the brief for respondents Center Moriches Union Free School
District et al. was
Ross Paine Masler. Respondent
Robert
Abrams, Attorney General of New York, filed a brief
pro
se. With him on the brief were
Jerry Boone, Solic-
386
itor General, and
Lillian Z. Cohen and
Jeffrey 1.
Slonim, Assistant Attorneys General. *
JUSTICE WHITE delivered the opinion of the Court.
New York Educ. Law §414 (McKinney 1988 and Supp. 1993)
authorizes local school boards to adopt reasonable regulations for
the use of school property for 10 specified purposes when the
property is not in use for school purposes. Among the permitted
uses is the holding of "social, civic and recreational meetings and
entertainments, and other uses pertaining to the welfare of the
community; but such meetings, entertainment and uses shall be
non-exclusive and shall be open to the general public." §414(c).1
The list of permitted uses does not include meetings for religious
purposes, and a New York appellate court in
Trietley v.
Board of Ed. of Buffalo, 409 N. Y. S. 2d 912, 915 (App. Div.
1978), ruled that local boards could not allow student bible clubs
to meet
*Briefs of amici curiae urging reversal were filed for the
United States by Solicitor General Starr, Assistant Attorney
General Gerson, Deputy Solicitor General Roberts, Edward C. DuMont,
Anthony J. Steinmeyer, and Lowell V. Sturgill, Jr.; for the
American Civil Liberties Union et al. by David H. Remes, T. Jeremy
Gunn, Steven R. Shapiro, John A. Powell, and Elliot M. Mincberg;
for the American Federation of Labor and Congress of Industrial
Organizations by Robert M. Weinberg, Laurence Gold, and Walter A.
Kamiat; for the Christian Legal Society et al. by Kimberlee Wood
Colby, Steven T. McFarland, Bradley P. Jacob, and Karon Owen
Bowdre; for Concerned Women for America et al. by Wendell R. Bird
and David J. Myers; for the National Jewish Commission on Law and
Public Affairs by Nathan Lewin and Dennis Rapps; and for the
Rutherford Institute by James J. Knicely and John W Whitehead.
Jay Worona, Pilar Sokol, and
Louis Grumet filed a
brief for the New York State School Boards Association et al. as
amici curiae urging affirmance.
1 Section 414(e) authorizes the use of school property "[f]or
polling places for holding primaries and elections and for the
registration of voters and for holding political meetings. But no
meetings sponsored by political organizations shall be permitted
unless authorized by a vote of a district meeting, held as provided
by law, or, in cities by the board of education thereof."
387
on school property because "[r]eligious purposes are not
included in the enumerated purposes for which a school may be used
under section 414." In
Deeper Life Christian Fellowship,
Inc. v.
Sobol, 948 F.2d
79, 83-84 (1991), the Court of Appeals for the Second Circuit
accepted
Trietley as an authoritative interpretation of
state law. Furthermore, the Attorney General of New York supports
Trietley as an appropriate approach to deciding this
case.
Pursuant to § 414's empowerment of local school districts, the
Board of Center Moriches Union Free School District (District) has
issued rules and regulations with respect to the use of school
property when not in use for school purposes. The rules allow only
2 of the 10 purposes authorized by § 414: social, civic, or
recreational uses (Rule 10) and use by political organizations if
secured in compliance with § 414 (Rule 8). Rule 7, however,
consistent with the judicial interpretation of state law, provides
that "[t]he school premises shall not be used by any group for
religious purposes." App. to Pet. for Cert. 57a.
The issue in this case is whether, against this background of
state law, it violates the Free Speech Clause of the First
Amendment, made applicable to the States by the Fourteenth
Amendment, to deny a church access to school premises to exhibit
for public viewing and for assertedly religious purposes, a film
series dealing with family and child-rearing issues faced by
parents today.
I
Petitioners (Church) are Lamb's Chapel, an evangelical church in
the community of Center Moriches, and its pastor John Steigerwald.
Twice the Church applied to the District for permission to use
school facilities to show a six-part film series containing
lectures by Doctor James Dobson.2 A bro-
2 Shortly before the first of these requests, the Church had
applied for permission to use school rooms for its Sunday morning
services and for Sunday School. The hours specified were 9 a.m. to
1 p.m. and the time
388
chure provided on request of the District identified Dr. Dobson
as a licensed psychologist, former associate clinical professor of
pediatrics at the University of Southern California, best-selling
author, and radio commentator. The brochure stated that the film
series would discuss Dr. 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. The brochure went on to describe the contents of each
of the six parts of the series.3 The District denied the first
application, saying
period one year beginning in the next month.
959 F.2d
381, 383 (CA2 1992). Within a few days the District wrote
petitioners that the application "requesting use of the high school
for your Sunday services" was denied, citing both N. Y. Educ. Law §
414 and the District's Rule 7 barring uses for religious purposes.
The Church did not challenge this denial in the courts and the
validity of this denial is not before us.
3
"Turn Your Heart Toward Home is available now in a
series of six discussion-provoking films:
'(1) A FATHER LOOKS BACK emphasizes how swiftly time passes and
appeals to all parents to 'turn their hearts toward home' during
the allimportant child-rearing years.
(60 minutes.)
'(2) POWER IN PARENTING: THE YOUNG CHILD begins by exploring the
inherent nature of power, and offers many practical helps for
facing the battlegrounds in child-rearing-bedtime, mealtime and
other confrontations so familiar to parents. Dr. Dobson also takes
a look at areas of conflict in marriage and other adult
relationships.
(60 minutes.)
'(3) POWER IN PARENTING: THE ADOLESCENT discusses father/
daughter and mother/son relationships, and the importance of
allowing children to grow to develop as individuals. Dr. Dobson
also encourages parents to free themselves of undeserved guilt when
their teenagers choose to rebel. (45
minutes.)
'(4) THE FAMILY UNDER FIRE views the family in the context of
today's society, where a "civil war of values" is being waged. Dr.
Dobson urges parents to look at the effects of governmental
interference, abortion and pornography, and to get involved. To
preserve what they care about most-their own families! (52
minutes.)
Note: This film contains explicit information regarding the
pornography industry. Not recommended for young audiences.
'(5) OVERCOMING A PAINFUL CHILDHOOD includes Shirley Dobson's
intimate memories of a difficult childhood with her alcoholic
389
that "[t]his film does appear to be church related and therefore
your request must be refused." App. 84. The second application for
permission to use school premises for showing the film series,
which described it as a "Family oriented movie-from a Christian
perspective," id., at 91, was denied using identical language.
The Church brought suit in the District Court, challenging the
denial as a violation of the Freedom of Speech and Assembly
Clauses, the Free Exercise Clause, and the Establishment Clause of
the First Amendment, as well as the Equal Protection Clause of the
Fourteenth Amendment. As to each cause of action, the Church
alleged that the actions were undertaken under color of state law,
in violation of 42 U. S. C. § 1983. The District Court granted
summary judgment for respondents, rejecting all the Church's
claims. With respect to the free-speech claim under the First
Amendment, the District Court characterized the District's
facilities as a "limited public forum." The court noted that the
enumerated purposes for which § 414 allowed access to school
facilities did not include religious worship or instruction, that
Rule 7 explicitly proscribes using school facilities for religious
purposes, and that the Church had conceded that its showing of the
film series would be for religious purposes. 770 F. Supp. 91, 92,
98-99 (EDNY 1991). The District Court stated that once a limited
public forum is opened to a particular type of speech, selectively
denying access to other activities of the same genre is forbidden.
Id., at 99. Noting that the District had not opened its
facilities to orga-
father. Mrs. Dobson recalls the influences which brought her to
a loving God who saw her personal circumstances and heard her cries
for help.
(40 minutes.)
'(6) THE HERITAGE presents Dr. Dobson's powerful closing
remarks.
Here he speaks clearly and convincingly of our traditional
values which, if properly employed and defended, can assure happy,
healthy, strengthened homes and family relationships in the years
to come.
(60 minutes.)" App.87-88.
390
nizations similar to Lamb's Chapel for religious purposes, the
District Court held that the denial in this case was viewpoint
neutral and, hence, not a violation of the Freedom of Speech
Clause.
Ibid. The District Court also rejected the assertion
by the Church that denying its application demonstrated a hostility
to religion and advancement of nonreligion not justified under the
Establishment of Religion Clause of the First Amendment. 736 F.
Supp. 1247, 1253 (1990).
The Court of Appeals affirmed the judgment of the District Court
"in all respects."
959 F.2d
381, 389 (CA2 1992). It held that the school property, when not
in use for school purposes, was neither a traditional nor a
designated public forum; rather, it was a limited public forum open
only for designated purposes, a classification that "allows it to
remain non-public except as to specified uses."
Id., at 386.
The court observed that exclusions in such a forum need only be
reasonable and viewpoint neutral,
ibid., and ruled that
denying access to the Church for the purpose of showing its film
did not violate this standard. Because the holding below was
questionable under our decisions, we granted the petition for
certiorari, 506 U. S. 813 (1992), which in principal part
challenged the holding below as contrary to the Free Speech Clause
of the First Amendment.4
II
There is no question that the District, like the private owner
of property, may legally preserve the property under its control
for the use to which it is dedicated.
Cornelius v.
NAACP
Legal Defense &
Ed. Fund, Inc., 473 U. S. 788, 800
(1985);
Perry Ed. Assn. v.
Perry Local Educators'
Assn., 460 U. S.
37, 46 (1983);
Postal Service v.
Council of
Green-
4 The petition also presses the claim by the Church, rejected by
both courts below, that the rejection of its application to exhibit
its film series violated the Establishment Clause because it and
Rule 7's categorical refusal to permit District property to be used
for religious purposes demonstrate hostility to religion. Because
we reverse on another ground, we need not decide what merit this
submission might have.
391
burgh Civic Assns., 453 U. S. 114, 129-130
(1981);
Greer v.
Spock, 424 U. S. 828, 836
(1976);
Adderley v.
Florida, 385 U. S. 39, 47 (1966).
It is also common ground that the District need not have permitted
after-hours use of its property for any of the uses permitted by N.
Y. Educ. Law § 414. The District, however, did open its property
for 2 of the 10 uses permitted by § 414. The Church argued below
that because under Rule 10 of the rules issued by the District,
school property could be used for "social, civic, and recreational"
purposes, the District had opened its property for such a wide
variety of communicative purposes that restrictions on
communicative uses of the property were subject to the same
constitutional limitations as restrictions in traditional public
forums such as parks and sidewalks. Hence, its view was that
subject matter or speaker exclusions on District property were
required to be justified by a compelling state interest and to be
narrowly drawn to achieve that end. See
Perry, supra, at 45;
Cornelius, supra, at 800. Both the District Court and the
Court of Appeals rejected this submission, which is also presented
to this Court. The argument has considerable force, for the
District's property is heavily used by a wide variety of private
organizations, including some that presented a "close question,"
which the Court of Appeals resolved in the District's favor, as to
whether the District had in fact already opened its property for
religious uses. 959 F. 2d, at 387.5 We need
5 In support of its case in the District Court, the Church
presented the following sampling of the uses that had been
permitted under Rule 10 in 1987 and 1988:
"A New Age religious group known as the 'Mind Center' Southern
Harmonize Gospel Singers
Salvation Army Youth Band
Hampton Council of Churches' Billy Taylor Concert Center
Moriches Co-op Nursery School's Quilting Bee Manorville Humane
Society's Chinese Auction Moriches Bay Power Squadron
[Footnote 5 is continued on p. 392J
392
not rule on this issue, however, for even if the courts below
were correct in this respect-and we shall assume for present
purposes that they were-the judgment below must be reversed.
With respect to public property that is not a designated public
forum open for indiscriminate public use for communicative
purposes, we have said that "[c]ontrol over access to a nonpublic
forum can be based on subject matter and speaker identity so long
as the distinctions drawn are reasonable in
Unkechaug Dance Group
Paul Gibson's Baseball Clinic Moriches Bay Civic Association
Moriches Chamber of Commerce's Town Fair Day Center Moriches
Drama Club
Center Moriches Music Award Associations' 'Amahl & the Night
Visitors' Saint John's Track and Field Program
Girl Scouts of Suffolk [C]ounty
Cub Scouts Pack 23
Boy Scout Troop #414." 770 F. Supp. 91, 93, n. 4 (EDNY
1991).
The Church claimed that the first three uses listed above
demonstrated that Rule 10 actually permitted the District property
to be used for religious purposes as well as a great assortment of
other uses. The first item listed is particularly interesting and
relevant to the issue before us. The District Court referred to
this item as "a lecture series by the Mind Center, purportedly a
New Age religious group."
Id., at 93. The Court of Appeals
described it as follows:
"The lecture series, 'Psychology and The Unknown,' by Jerry
Huck, was sponsored by the Center Moriches Free Public Library. The
library's newsletter characterized Mr. Huck as a psychotherapist
who would discuss such topics as parapsychology, transpersonal
psychology, physics and metaphysics in his 4-night series of
lectures. Mr. Huck testified that he lectured principally on
parapsychology, which he defined by 'reference to the human
unconscious, the mind, the unconscious emotional system or the body
system.' When asked whether his lecture involved matters of both a
spiritual and a scientific nature, Mr. Huck responded: 'It was all
science. Anything I speak on based on parapsychology, analytic,
quantum physicists [sic].' Although some incidental reference to
religious matters apparently was made in the lectures, Mr. Huck
himself characterized such matters as 'a fascinating sideline' and
'not the purpose of the [lecture].''' 959 F. 2d, at 388.
393
light of the purpose served by the forum and are viewpoint
neutral."
Cornelius, 473 U. S., at 806, citing
Perry
Education Assn., supra, at 49. The Court of Appeals appeared to
recognize that the total ban on using District property for
religious purposes could survive First Amendment challenge only if
excluding this category of speech was reasonable and viewpoint
neutral. The court's conclusion in this case was that Rule 7 met
this test. We cannot agree with this holding, for Rule 7 was
unconstitutionally applied in this case.6
The Court of Appeals thought that the application of Rule 7 in
this case was viewpoint neutral because it had been, and would be,
applied in the same way to all uses of school property for
religious purposes. That all religions and all uses for religious
purposes are treated alike under Rule 7, however, does not answer
the critical question whether it discriminates on the basis of
viewpoint to permit school property to be used for the presentation
of all views about family issues and child rearing except those
dealing with the subject matter from a religious standpoint.
There is no suggestion from the courts below or from the
District or the State that a lecture or film about child rearing
and family values would not be a use for social or civic purposes
otherwise permitted by Rule 10. That subject matter is not one that
the District has placed off limits to any and all speakers. Nor is
there any indication in the record before us that the application
to exhibit the particular film series involved here was, or would
have been, denied for any reason other than the fact that the
presentation would have
6 Although the Court of Appeals apparently held that Rule 7 was
reasonable as well as viewpoint neutral, the court uttered not a
word in support of its reasonableness holding. If Rule 7 were to be
held unreasonable, it could be held facially invalid, that is, it
might be held that the rule could in no circumstances be applied to
religious speech or religious communicative conduct. In view of our
disposition of this case, we need not pursue this issue.
394
been from a religious perspective. In our view, denial on that
basis was plainly invalid under our holding in
Cornelius,
supra, at 806, that
"[a]lthough a speaker may be excluded from a nonpublic forum if
he wishes to address a topic not encompassed within the purpose of
the forum ... or if he is not a member of the class of speakers for
whose especial benefit the forum was created ... , the government
violates the First Amendment when it denies access to a speaker
solely to suppress the point of view he espouses on an otherwise
includible subject."
The film series involved here no doubt dealt with a subject
otherwise permissible under Rule 10, and its exhibition was denied
solely because the series dealt with the subject from a religious
standpoint. The principle that has emerged from our cases "is that
the First Amendment forbids the government to regulate speech in
ways that favor some viewpoints or ideas at the expense of others."
City Council of Los Angeles v.
Taxpayers for Vincent,
466 U. S. 789,
804 (1984). That principle applies in the circumstances of this
case; as Judge Posner said for the Court of Appeals for the Seventh
Circuit, to discriminate "against a particular point of view ...
would ... flunk the test ... [of]
Cornelius, provided that
the defendants have no defense based on the establishment clause."
May v.
Evansville- Vanderburgh School Corp., 787
The District, as a respondent, would save its judgment below on
the ground that to permit its property to be used for religious
purposes would be an establishment of religion forbidden by the
First Amendment. This Court suggested in
Widmar v.
Vincent, 454
U. S. 263, 271 (1981), that the interest of the State in
avoiding an Establishment Clause violation "may be [a] compelling"
one justifying an abridgment of free speech otherwise protected by
the First Amendment; but the Court went on to hold that permitting
use of univer-
395
sity property for religious purposes under the open access
policy involved there would not be incompatible with the Court's
Establishment Clause cases.
We have no more trouble than did the
Widmar Court in
disposing of the claimed defense on the ground that the posited
fears of an Establishment Clause violation are unfounded. The
showing of this film series would not have been during school
hours, would not have been sponsored by the school, and would have
been open to the public, not just to church members. The District
property had repeatedly been used by a wide variety of private
organizations. Under these circumstances, as in
Widmar,
there would have been no realistic danger that the community would
think that the District was endorsing religion or any particular
creed, and any benefit to religion or to the Church would have been
no more than incidental. As in
Widmar, supra, at 271-272,
permitting District property to be used to exhibit the film series
involved in this case would not have been an establishment of
religion under the three-part test articulated in
Lemon v.
Kurtzman, 403
U. S. 602 (1971): The challenged governmental action has a
secular purpose, does not have the principal or primary effect of
advancing or inhibiting religion, and does not foster an excessive
entanglement with religion.7
The District also submits that it justifiably denied use of its
property to a "radical" church for the purpose of proselytizing,
since to do so would lead to threats of public unrest and even
violence. Brief for Respondent Center Moriches
7While we are somewhat diverted by JUSTICE SCALIA'S evening at
the cinema,
post, at 398-399, we return to the reality that
there is a proper way to inter an established decision and
Lemon, however frightening it might be to some, has not been
overruled. This case, like
Corporation of Presiding Bishop of
Church of Jesus Christ of Latter-day Saints v.
Amos,
483 U. S. 327
(1987), presents no occasion to do so. JUSTICE SCALIA apparently
was less haunted by the ghosts of the living when he joined the
opinion of the Court in that case.
396
Union Free School District et al. 4-5, 11-12, 24. There is
nothing in the record to support such a justification, which in any
event would be difficult to defend as a reason to deny the
presentation of a religious point of view about a subject the
District otherwise opens to discussion on District property.
We note that the New York State Attorney General, a respondent
here, does not rely on either the Establishment Clause or possible
danger to the public peace in supporting the judgment below.
Rather, he submits that the exclusion is justified because the
purpose of the access rules is to promote the interests of the
public in general rather than sectarian or other private interests.
In light of the variety of the uses of District property that have
been permitted under Rule 10, this approach has its difficulties.
This is particularly so since Rule 10 states that District property
may be used for social, civic, or recreational use "only if it can
be non-exclusive and open to all residents of the school district
that form a homogeneous group deemed relevant to the event." App.
to Pet. for Cert. 57a. At least arguably, the Rule does not require
that permitted uses need be open to the public at large. However
that may be, this was not the basis of the judgment that we are
reviewing. The Court of Appeals, as we understand it, ruled that
because the District had the power to permit or exclude certain
subject matters, it was entitled to deny use for any religious
purpose, including the purpose in this case. The Attorney General
also defends this as a permissible subject-matter exclusion rather
than a denial based on viewpoint, a submission that we have already
rejected.
The Attorney General also argues that there is no express
finding below that the Church's application would have been granted
absent the religious connection. This fact is beside the point for
the purposes of this opinion, which is concerned with the validity
of the stated reason for denying the
397
Church's application, namely, that the film series sought to be
shown "appeared to be church related."
For the reasons stated in this opinion, the judgment of the
Court of Appeals is
Reversed.
JUSTICE KENNEDY, concurring in part and concurring in the
judgment.
Given the issues presented as well as the apparent unanimity of
our conclusion that this overt, viewpoint-based discrimination
contradicts the Free Speech Clause of the First Amendment and that
there has been no substantial showing of a potential Establishment
Clause violation, I agree with JUSTICE SCALIA that the Court's
citation of
Lemon v.
Kurtzman, 403 U. S. 602 (1971), is
unsettling and unnecessary. The same can be said of the Court's use
of the phrase "endorsing religion," see
ante, at 395, which,
as I have indicated elsewhere, cannot suffice as a rule of decision
consistent with our precedents and our traditions in this part of
our jurisprudence. See
Allegheny County v.
American Civil
Liberties Union, Greater Pittsburgh Chapter, 492 U. S. 573, 655 (1989)
(opinion concurring in judgment in part and dissenting in part).
With these observations, I concur in part and concur in the
judgment.
JUSTICE SCALIA, with whom JUSTICE THOMAS joins, concurring in
the judgment.
I join the Court's conclusion that the District's refusal to
allow use of school facilities for petitioners' film viewing, while
generally opening the schools for community activities, violates
petitioners' First Amendment free-speech rights (as does N. Y.
Educ. Law §414 (McKinney 1988 and Supp. 1993), to the extent it
compelled the District's denial, see
ante, at 386-387). I
also agree with the Court that allowing Lamb's Chapel to use school
facilities poses "no realistic danger" of a violation of the
Establishment Clause,
ante, at
398
SCALIA, J., concurring in judgment
395, but I cannot accept most of its reasoning in this regard.
The Court explains that the showing of petitioners' film on school
property after school hours would not cause the community to "think
that the District was endorsing religion or any particular creed,"
and further notes that access to school property would not violate
the three-part test articulated in
Lemon v.
Kurtzman,
403 U. S. 602
(1971).
Ante, at 395.
As to the Court's invocation of the
Lemon test: Like some
ghoul in a late-night horror movie that repeatedly sits up in its
grave and shuffles abroad, after being repeatedly killed and
buried,
Lemon stalks our Establishment Clause jurisprudence
once again, frightening the little children and school attorneys of
Center Moriches Union Free School District. Its most recent burial,
only last Term, was, to be sure, not fully six feet under: Our
decision in
Lee v.
Weisman, 505 U. S. 577, 586-587
(1992), conspicuously avoided using the supposed "test" but also
declined the invitation to repudiate it. Over the years, however,
no fewer than five of the currently sitting Justices have, in their
own opinions, personally driven pencils through the creature's
heart (the author of today's opinion repeatedly), and a sixth has
joined an opinion doing so. See,
e. g.,
Weisman,
supra, at 644 (SCALIA, J., joined by,
inter alios,
THOMAS, J., dissenting);
Allegheny County v.
American
Civil Liberties Union, Greater Pittsburgh Chapter, 492 U. S. 573, 655-657
(1989) (KENNEDY, J., concurring in judgment in part and dissenting
in part);
Corporation of Presiding Bishop of Church of Jesus
Christ of Latter-day Saints v.
Amos, 483 U. S. 327, 346-349
(1987) (O'CONNOR, J., concurring in judgment);
Wallace v.
Jaffree, 472 U.
S. 38, 107-113 (1985) (REHNQUIST, J., dissenting); id., at
90-91 (WHITE, J., dissenting);
School Dist. of Grand Rapids
v.
Ball, 473
U. S. 373, 400 (1985) (WHITE, J., dissenting);
Widmar v.
Vincent, 454
U. S. 263, 282 (1981) (WHITE, J., dissenting);
New York
v.
Cathedral Academy, 434 U. S. 125,
399
134-135 (1977) (WHITE, J., dissenting);
Roemer v.
Board of Pub. Works of Md., 426 U. S. 736, 768 (1976)
(WHITE, J., concurring in judgment);
Committee for Public
Ed. &
Religious Liberty v.
Nyquist, 413 U. S. 756, 820 (1973)
(WHITE, J., dissenting).
The secret of the
Lemon test's survival, I think, is that
it is so easy to kill. It is there to scare us (and our audience)
when we wish it to do so, but we can command it to return to the
tomb at will. See,
e. g., Lynch v.
Donnelly, 465 U. S. 668, 679 (1984)
(noting instances in which Court has not applied
Lemon
test). When we wish to strike down a practice it forbids, we invoke
it, see,
e. g., Aguilar v.
Felton, 473 U. S. 402
(1985) (striking down state remedial education program administered
in part in parochial schools); when we wish to uphold a practice it
forbids, we ignore it entirely, see
Marsh v.
Chambers, 463
U. S. 783 (1983) (upholding state legislative chaplains).
Sometimes, we take a middle course, calling its three prongs "no
more than helpful signposts,"
Hunt v.
McNair,
413 U. S. 734,
741 (1973). Such a docile and useful monster is worth keeping
around, at least in a somnolent state; one never knows when one
might need him.
For my part, I agree with the long list of constitutional
scholars who have criticized
Lemon and bemoaned the strange
Establishment Clause geometry of crooked lines and wavering shapes
its intermittent use has produced. See,
e. g., Choper, The
Establishment Clause and Aid to Parochial Schools-An Update, 75
Calif. L. Rev. 5 (1987); Marshall, "We Know It When We See It": The
Supreme Court and Establishment, 59 S. Cal. L. Rev. 495 (1986);
McConnell, Accommodation of Religion, 1985 S. Ct. Rev. 1; Kurland,
The Religion Clauses and the Burger Court, 34 Cath. U. L. Rev. 1
(1984); R. Cord, Separation of Church and State (1982); Choper, The
Religion Clauses of the First Amendment: Reconciling the Conflict,
41 U. Pitt. L. Rev. 673 (1980). I will decline to apply
Lemon-whether it vali-
400
SCALIA, J., concurring in judgment
dates or invalidates the government action in question-and
therefore cannot join the opinion of the Court today. *
I cannot join for yet another reason: the Court's statement that
the proposed use of the school's facilities is constitutional
because (among other things) it would not signal endorsement of
religion in general.
Ante, at 395. What a strange notion,
that a Constitution which
itself gives "religion in general"
preferential treatment (I refer to the Free Exercise Clause)
forbids endorsement of religion in general. The attorney general of
New York not only agrees with that strange notion, he has an
explanation for it: "Religious advocacy," he writes, "serves the
community only in the eyes of its adherents and yields a benefit
only to those who already believe." Brief for Respondent Attorney
General 24. That was
not the view of those who adopted our
Constitution, who believed that the public virtues inculcated by
religion are a public good. It suffices to point out that during
the summer of 1789, when it was in the process of drafting the
First Amendment, Congress enacted the Northwest Territory Ordinance
that the Confederation Congress had adopted in 1787-Article III of
which provides: "Religion, morality, and knowledge,
being
necessary to good government and the happiness of mankind,
schools and the means of education shall forever be encouraged."
Unsurprisingly, then, indifference to "religion in general" is
not what our cases, both old and recent, demand. See,
e.
g., Zorach v.
Clauson, 343 U. S. 306, 313-314 (1952)
("When the state encourages reli-
*The Court correctly notes,
ante, at 395, n. 7, that I
joined the opinion in
Corporation of Presiding Bishop of Church
of Jesus Christ of Latterday Saints v.
Amos, 483 U. S. 327 (1987),
which considered the
Lemon test. Lacking a majority at that
time to abandon
Lemon, we necessarily focused on that test,
which had been the exclusive basis for the lower court's judgment.
Here, of course, the lower court did not mention
Lemon, and
indeed did not even address any Establishment Clause argument on
behalf of respondents. Thus, the Court is ultimately correct that
Presiding Bishop provides a useful comparison: It was as
impossible to avoid
Lemon there, as it is unnecessary to
inject
Lemon here.
401
gious instruction or cooperates with religious authorities by
adjusting the schedule of public events to sectarian needs, it
follows the best of our traditions");
Walz v.
Tax Comm'n
of New York City, 397 U. S. 664 (1970)
(upholding property tax exemption for church property);
Lynch, 465 U. S., at 673 (the Constitution "affirmatively
mandates accommodation, not merely tolerance, of all religions ....
Anything less would require the 'callous indifference' we have said
was never intended" (citations omitted)); id., at 683 ("[O]ur
precedents plainly contemplate that on occasion some advancement of
religion will result from governmental action");
Marsh, supra;
Corporation of Presiding Bishop of Church of Jesus Christ of
Latter-day Saints v.
Amos, 483 U. S. 327 (1987)
(exemption for religious organizations from certain provisions of
Civil Rights Act).
***
For the reasons given by the Court, I agree that the Free Speech
Clause of the First Amendment forbids what respondents have done
here. As for the asserted Establishment Clause justification, I
would hold, simply and clearly, that giving Lamb's Chapel
nondiscriminatory access to school facilities cannot violate that
provision because it does not signify state or local embrace of a
particular religious sect.
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