RE: Bronx Household of Faith v New York Schools

[Alan Brownstein]

Lamb’s Chapel was a free speech case. It held that the refusal to allow a group to show a movie dealing with family issues from a religious perspective constituted viewpoint discrimination when a group showing movies or hosting discussions of family issues from a secular perspective would have been granted access. Because the School was engaged in viewpoint discrimination, the Court did not have to discuss the nature of the forum that was at issue.   It was not self evident to everyone after Lamb’s Chapel that a school policy distinguishing between a religious worship service and a meeting of the Boy Scouts constituted viewpoint discrimination. Indeed, it wasn’t obvious to everyone that a worship service should be conceptualized as speech and discrimination against it evaluated under the free speech clause at all  – as opposed to conceptualizing a worship service as the exercise of religion and evaluating discrimination against it under the free exercise clause. But if the speech clause did apply, there was at least an argument that distinguishing between a scout meeting and a worship service constituted content, rather than viewpoint discrimination  -- a conclusion which would have required the Court to identify the nature of the forum at issue, and perhaps, to substantially reduce the rigor of the standard of review.   I continue to believe that reasoning of Good News Club is problematic, and that the Court’s characterization of a worship service as a viewpoint of _expression_ is going to raise problems for religious accommodations that treat worship services more favorably than civic club meetings (or the site for worship services more favorably than the sites for civic club meetings). Viewpoint discrimination is a two edged sword.   Alan Brownstein       From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED]] On Behalf Of Ed Brayton Sent: Friday, November 18, 2005 12:47 PM To: Law & Religion issues for Law Academics Subject: Re: Bronx Household of Faith v New York Schools   [EMAIL PROTECTED] wrote: I'm not at all surprised at the result.  There is a huge difference between a student after-school club alongside other secular clubs and a church taking over a school building for most of a weekend solely for religious purposes, including full-scale worship.  The equality rationale has really warped Establishment Clause principles if we have reached the point where one cannot see the difference between those two factual settings. Well, there is a difference. Is there a constitutionally-relevant difference? If there is, I don't see it. If a church may rent school facilities to show a movie, as Lamb's Chapel held, why can't they rent a school facility to hold a service? Lamb's Chapel explicitly addressed the question of establishment and ruled that it would not be an establishment of religion because it's A) not during school hours; B) not school-sponsored; and C) it's open for use by any religious or non-religious group for similar purposes. All three of those remain true in a worship setting as in a movie-showing setting. In Good News Club, the proposed activities for the club included singing hymns, bible-reading and prayer - i.e. worship, in all of its essentials - yet the court still ruled the same way. So what is the constitutionally-relevant difference between them that would make one constitutional and the other unconstitutional? Ed Brayton

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