533 U.S. 98 (2001), argued 28 Feb. 2001, decided 11 June 2001 by vote of 6 to 3; Thomas for the Court, Scalia concurring, Breyer concurring in part, Stevens and Souter in dissent, joined by Ginsburg.
The school district in Milford, New York, enacted a “community use” policy, authorizing the after-school use by district residents of school buildings for, inter alia, “instruction in … education, learning or the arts,” “social, civil and recreational meetings,” and “other uses pertaining to the welfare of the community” (p. 102). The district refused to permit the Good News Club—a “private Christian organization”—to use school facilities for “a fun time of singing songs, hearing a Bible lesson, and memorizing scripture,” on the ground that the proposed use was “the equivalent of religious worship,” noting that the community-use policy prohibited use of school facilities “for religious purposes” (p. 103).
In Good News, the Court employed its viewpoint-neutrality and public-forum doctrines to resolve a dispute about the place of religious expression and activity on public property. Writing for the majority, Justice Clarence Thomas insisted that “speech discussing otherwise permissible subjects cannot be excluded from a limited public forum on the ground that the subject is discussed from a religious viewpoint” (p. 112). Having created a “limited public forum,” the district could not regulate access to that forum in a “viewpoint-based” fashion. In the Court's view, the exclusion of the Good News Club, on the ground that its proposed activities were akin to religious instruction or worship, constituted viewpoint discrimination; that is, religious “uses pertaining to the welfare of the community” were excluded, precisely because they were religious.
Good News highlights a difficulty with the Court's treatment of religious-expression cases in Free Speech Clause terms: Are courts able to police the line between “speech from a religious viewpoint,” on the one hand, and “religious worship,” on the other? Justice John Paul Stevens conceded, in dissent, that the Court's free-speech doctrines protect “religious speech that is simply speech about a particular topic from a religious point of view” (p. 130), but nonetheless insisted that expression amounting to “religious worship” or “proselytization” must be treated differently, given the Establishment Clause.
Richard W. Garnett