Copyright (c) 2001 First Things 116 (October 2001): 12-14.
Good News v. Milford is very good news indeed for advocates of school vouchers and faith-based organizations (FBOs). The Supreme Court’s 6-3 decision upholding the right of a Christian youth group to meet in public schools after class hours is a significant signal of the Court’s willingness to treat religious organizations and viewpoints on an evenhanded basis.
In 1992, Milford Central School in New York State enacted a community use policy outlining purposes for which its building could be used after school. Under the policy, district residents could use the school for “instruction in any branch of education, learning, or the arts.” The school was also to be made available for “social, civic, and recreational meetings and entertainment events, and other uses pertaining to the welfare of the community, provided that such uses shall be nonexclusive and shall be opened to the general public.” Several district residents who sponsored the local Good News Club—a private, voluntary Christian organization for children ages six to twelve—submitted a request to the interim superintendent of the district, seeking to hold the Club’s weekly after-school meetings in the school cafeteria. They were excluded, however, because their proposed use—to have “a fun time of singing songs, hearing a Bible lesson, and memorizing Scripture”—was “the equivalent of religious worship.” The school authorities claimed that such a meeting was prohibited by the rules that forbid the school from being used “by any individual or organization for religious purposes.”
The Court, per Justice Clarence Thomas, found Milford to have created a limited public forum—in essence, a standing invitation to use public property for the designated purposes. When the state establishes a limited public forum, the state is not required to and does not allow persons to engage in every type of speech. However, said the Court, the state’s power to restrict speech is not without limits. Such restriction must not discriminate against speech on the basis of viewpoint, and the restriction must be “reasonable in light of the purpose served by the forum.”
Relying upon two earlier but more narrowly written opinions, the Court found the school district to have discriminated against the proposed religious speech in Good News. In Lamb’s Chapel v. Center Moriches (1993), the Justices held that a school district violated the Free Speech Clause of the First Amendment when it excluded a private group from presenting films at the school based solely on the films’ discussions of family values from a religious perspective. Likewise, in Rosenberger v. Rector (1995), the Court held that a university’s refusal to fund a student publication because the publication addressed issues from a religious viewpoint violated the Free Speech Clause. The majority concluded that Milford’s exclusion of the Good News Club based on its religious nature was indistinguishable from the exclusions in these cases, and held that it constituted viewpoint discrimination.
The result in Good News is significant for what the Court refused to do: namely, indulge the notion that some protected religious speech is “too religious.” The Court expressly disagreed with the idea 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. Said the Court: “What matters for purposes of the Free Speech Clause is that we can see 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.”
Federal judges are expected to play many roles, but attempting to differentiate between religiously informed moral instruction and unambiguously religious practice or instruction is not comfortably one of them. Indeed, even contemplating such distinctions is theologically perilous, for while some religions treat ethics and religion as distinct subjects, the adherents of many mainstream religions of the West (including Judaism and Christianity) hold ethics and religion to be inseparable. The lower court had presupposed that morality is independent from divine will, but that is not so for many believers. Indeed, had the Supreme Court not disavowed that specious notion, it would have rightly been seen as improperly taking sides over religious doctrine.
Milford argued that, even if its restriction constitutes viewpoint discrimination, its interest in not violating the Establishment Clause outweighed the Club’s interest in gaining equal access to the school’s facilities. Melding Justice Thomas’ neutral or equal access ideas from Mitchell v. Helms (2000) (upholding the nondiscriminatory allocation of educational re sources such as computers to religious and public schools alike) with Justice Sandra Day O’Connor’s long-standing sensitivity to improper endorsement and Justice Anthony Kennedy’s similar attention to tacit coercion in such school prayer cases as Lee v. Weisman (1992), the Court found no Establishment Clause violation in Good News.
Factually, the Court noted that the Club’s meetings were held after school hours, were not sponsored by the school, and were open to any student who obtained parental consent, not just to Club members. Moreover, the objection that the Club was aimed at elementary school children was deemed unpersuasive, since from the endorsement perspective, “the relevant community would be the parents, not the elementary school children.” Reasoned the Court: “Because the children cannot attend without their parents’ permission, they cannot be coerced into engaging in the Good News Club’s religious activities. Milford does not suggest that the parents of elementary school children would be confused about whether the school was endorsing religion. Nor do we believe that such an argument could be reasonably advanced.”
Good News v. Milford is especially welcome news for supporters of school vouchers and government funding of faith-based organizations. A majority of the Court now affirms that when “aid is offered to a broad range of groups or persons without regard to their religion” there can be no violation of the separation of church and state. Surely, lawmakers sympathetic to President Bush’s effort to construct expanded opportunities for FBOs should highlight this principle. Yet as of this writing, they appear not to have fully digested these legal developments.
In the bill currently on its way to the Senate, FBOs would be allowed to keep names, charters, and symbols, but not to offer religious services, prayer, or preaching as part of government-funded social service programs. But this is exactly the kind of distinction rejected in Good News, and it should not be bootstrapped into federal law. If individuals are free not to pursue assistance from a religious provider, there is no reason to impose costly and cumbersome requirements to keep the spiritually effective elements of a program administratively separate from the secular ones.
Certainly, Mitchell and Good News suggest that the absolute prohibition of “pervasively sectarian” institutions is no longer valid. Such categorical discrimination against religious entities has now twice been described by the Court as a product of the anti-immigrant (viz., anti-Catholic and anti-Jewish) bias of an earlier period of American history. Indeed, for the last two decades, the Court has been evolving from an inconsistent (and often incoherent) prohibition of aid or benefits flowing to religious organizations (secular books, okay, but not maps) to an examination of whether the aid or benefit was used for religious purposes to an equality of distrubution inquiry without unnecessary concern for how the benefit may be used. All this makes good sense. As long as private choice is at the core of the decision, it matters not whether our tax-deductible church plate contributions are used to supply either bodily or spiritual food for the needy; so, too, it matters not if public resources—be they computers or classrooms—are privately allocated within a neutrally designed, evenhanded program to the character instruction of Christ’s witness or the Boy Scout handbook.
This is precisely why the FBOstructure recently adopted by the House is flawed—it slights private choice in favor of funding FBOs directly by the U.S. Treasury. As noted above, the Court has moved away from using the Establishment Clause to invalidate monies disbursed evenhandedly to a broad range of competing groups, religious and nonreligious alike, but why invite trouble by having disbursement come from R. Barry Bureaucrat, rather than John Q. Public? It is likely this direct delivery of funds that explains the House’s unfortunate censorship of FBOs, which itself is constitutionally dubious. And whether or not it is, it certainly invites all kinds of burdensome federal auditing and entanglement, along with subtle pressures on churches to modify their teachings as an implied grant condition.
The way out of this morass is not to abandon the creative social service potential of FBOs, but rather to fund them indirectly. Simply allowing taxpayers an enhanced tax credit for donations to the FBO of their choice would eliminate any residual church-state questions. The House measure appropriately expanded deductibility for charitable giving in general. The Senate should complete this work by providing a credit specifically for FBO donations.
The case for school vouchers is also strengthened by Good News. The Court is presently being petitioned to review the constitutionality of a school voucher or scholarship program that makes taxpayer education funds available to low-income families seeking to avoid the troubled Cleveland schools. Contrary to favorable voucher rulings in Wisconsin, Arizona, and Illinois, the lower federal courts struck down the Cleveland program because the public schools refused to actively participate in the voucher program, even though the law authorized them to do so. The absence of public participants troubled the lower courts, since it effectively meant that only private religious schools received vouchers in Cleveland. An important side note in the Good News decision suggests that this should make no difference. The Court observed that when a public benefit is offered for actual use “by groups presenting any viewpoint, [the Court] would not find an Establishment Clause violation simply because only groups presenting a religious viewpoint have opted to take advantage of the [benefit] at a particular time.”
In other words, the fact that only private religious schools have cared enough about the educational fortunes of the least advantaged children cannot be used against them. After all, the law should not be structured so that there is a preferential option against the poor.
Douglas W. Kmiec is Dean and St. Thomas More Professor of Constitutional Law at the Catholic University of America, Washington, D.C.