244 [86 Op. Att’y

CONSTITUTIONAL LAW

ESTABLISHMENT CLAUSE – FREEDOM OF SPEECH – WHETHER

PUBLIC LIBRARY READING PROGRAM MAY DISTRIBUTE COUPON

CONTAINING BIBLICAL REFERENCE

October 2, 2001

The Honorable Larry E. Haines

Maryland Senate

You have asked for our opinion on two issues related to the

deletion of a biblical reference from a commercial business coupon

that was included in a package distributed by the Carroll County

Public Library as part of its summer reading program. Specifically,

you have asked: 

(1) Was the removal of the biblical reference required by the

Establishment Clause of the United States Constitution? 

(2) Did removal of the biblical reference violate the right of

free speech under the First Amendment of the United States

Constitution or Article 40 of the Maryland Declaration of Rights? 

In our opinion, inclusion of the coupon with the biblical

reference intact would not have violated the Establishment Clause.

Because the circumstances of the deletion of the biblical reference

are a matter of dispute, we address your second question as if the

library had simply excluded the coupon with the biblical reference

from the packet. In our view, exclusion of the coupon would not

have violated constitutional guarantees of free speech. 

I

Background

Your questions concern the contents of the “goodie bag” that

was given to children who signed up for the Carroll County Public

Library’s summer reading program. The packets, which varied

according to age group, contained materials relating to the reading

program itself, a small magazine for older children, and three or four

coupons offering discounts at various businesses. For example,
Gen. 244] 245

 The fish symbol is recognized as a Christian symbol, Webb v. City 1

of Republic, 55 F.Supp.2d 994, 995 (W.D. Mo. 1999), as, of course, is the

cross.

 The verse appears in the Letter of St. Paul to the Ephesians: “And 2

take the helmet of salvation and the sword of the Spirit, which is the word

of God.” Ephesians, 6:17, Oxford Annotated Bible, Revised Standard

Edition (1965).

Critics accuse library director of religious discrimination, Carroll 3

County Times (July 1, 2001); Reading freebie finds flashpoint, Baltimore

Sun (June 30, 2001).

packets included coupons for a local fast food restaurant, an

amusement park, and the Baltimore Zoo.

One of the coupons distributed in the packets was for Shea’s

Maze, a maze created in a corn field in Gettysburg, Pennsylvania.

The coupon offers $1 off the price of admission and contains the

name, address, and phone number of the business and directions to

the maze. The coupon states that Shea’s Maze is “the only maze in

corn to stand year round.” Approximately half of the coupon is

taken up by a cartoon figure of a mouse named “Kernel Mazeincorn

Shea,” which serves as the trademark of the maze. The mouse has

a fish symbol on his hat and a cross on a badge or button on his

coat. The mouse holds a sword in his right hand. Over the mouse’s 1

left hand, in very small type, is “Eph. 6:17” – a reference to a New

Testament verse. The reverse side of the coupon lists the hours of 2

operation of the maze and admission prices. 

When the Shea’s Maze coupon was originally submitted for

inclusion in the packet, the head of the library program informed the

business owner that the biblical reference would have to be removed,

but did not request deletion of the fish symbol or the cross. Library

staff indicate that the owner agreed to make this change, but

subsequently delivered the coupons with the reference intact.

Library staff then deleted the reference by hand from the coupons

before including them in the packet for distribution. According to

published reports, the owner of the business has stated that the

biblical reference is part of the business trademark and that she never

agreed to deletion of the biblical reference.

3
246 [86 Op. Att’y

 There has been some confusion about whether, in focusing on the 4

question of government endorsement, the Supreme Court was establishing

an entirely new test, or simply explicating the second prong of the Lemon

test – i.e., whether a government action has a primary effect of advancing

or inhibiting religion. Compare Altman v. Bedford Cent. School District,

245 F.3d 49, 75 (2d Cir. 2001) and Webb v. City of Republic, 55

F.Supp.2d 994, 997 (W.D. Mo. 1999) with A.C.L.U. of Ohio v. Capitol

Square Review, 243 F.3d 289, 306 (6 Cir. 2001) (en banc) and Gaylor v. th

United States, 74 F.3d 214, 217 (10 Cir.), cert. denied, 116 S.Ct. 1830 th

(1996). 

II

Analysis

A. Establishment Clause

The First Amendment to the United States Constitution

provides in part that “Congress shall make no law respecting an

establishment of religion.” This provision, commonly known as the

Establishment Clause, also applies to the states by virtue of the

Fourteenth Amendment. Everson v. Board of Education, 330 U.S.

1 (1947). 

The Establishment Clause means, at the least, that “[n]either a

state nor the Federal Government can set up a church. Neither can

pass laws which aid one religion, aid all religions, or prefer one

religion over another.” Everson, 330 U.S. at 15-16. The Clause also

prevents the government from “appearing to take a position on

questions of religious belief or from ‘making adherence to a religion

relevant in any way to a person’s standing in the political

community.’” County of Allegheny v. American Civil Liberties

Union, 492 U.S. 573, 594 (1989). 

The Supreme Court has long applied a three-part analysis to

test government practices against the Establishment Clause: the

practice must have a secular purpose; it must neither advance nor

inhibit religion; and it must not foster excessive entanglement with

religion. Lemon v. Kurtzman, 403 U.S. 602 (1971). In recent years,

analysis of Establishment Clause issues has focused on whether the

challenged action has the purpose or effect of endorsing religion.

County of Allegheny, 492 U.S. at 592-94. Under this test, the 4

question of whether including a coupon with a biblical reference in

the summer reading package would have violated the Establishment
Gen. 244] 247

Clause depends on whether a “reasonable observer” would perceive

it as a state endorsement of religion. Santa Fe Independent School

District v. Doe, 530 U.S. 290, 306-8 (2000).

The Supreme Court most recently applied the endorsement test

in Good News Club v. Milford Central School, 121 S.Ct. 2093

(2001) and Santa Fe Independent School District, supra. In Good

News Club, the court held that the Establishment Clause did not

require a public school to exclude a religious children’s club from

after-hours use of school facilities. In concluding that such use

would not constitute an endorsement of religion, the Court reasoned

that providing religious groups with the same access to school

facilities as other groups would not offend the neutrality principle

underlying the First Amendment, that parents would not feel coerced

to have their children join the club, and that it was unlikely that

children would misperceive use of the facilities as endorsement of

religion. 121 S.Ct. at 2103-7.

The Sante Fe case concerned whether prayers delivered by

students at varsity football games violated the Establishment Clause.

While recognizing that private speech that takes place in a

government forum is not the government’s speech, the Court

concluded that the pre-game student invocation was not private

speech because it was delivered over the school’s public address

system, the system was not generally open to private speakers, and

the school retained some control over the content of the speech. 530

U.S. at 306-8. Moreover, the history of the practice demonstrated

that it was simply a continuation of the school’s previous policy of

sanctioning student-led prayer at athletic events. Id. at 309-10. In

those circumstances, a “student will unquestionably perceive the

inevitable pregame prayer as stamped with her school’s seal of

approval.” Id. at 308. 

Whether a reasonable observer would perceive endorsement of

religion in a government action depends on the context, as well as

the content, of the government action. In County of Allegheny v.

American Civil Liberties Union, 492 U.S. 573 (1989), the Court held

that display of a creche in a central portion of a county building

violated the Establishment Clause. But in Lynch v. Donnelly, 465

U.S. 668 (1984), the Court found that including a nativity scene in

a city’s Christmas display did not violate the Establishment Clause,

where the nativity scene was included with a Santa Claus house,

reindeer pulling Santa’s sleigh, candy striped poles, a Christmas tree,

carolers, cutout figures of characters such as a clown, an elephant,

and a teddy bear, hundreds of colored lights, and a large banner that
248 [86 Op. Att’y

 We do not mean to imply that we would reach the same conclusion 5

if the content of the coupon were markedly different (e.g., a church’s

advertising of its vacation bible school).

said “Seasons Greetings.” Similarly, in Capitol Square Review &

Advisory Board v. Pinette, 515 U.S. 753 (1995), the Court found that

allowing the Ku Klux Klan to erect a cross in a park would not have

violated the Establishment Clause, when the park was open to

speech by many groups on equal terms. See also Doe v. Small, 964

F.2d 611 (7 Cir. 1992) (city could not exclude private association th

from displaying paintings in public park merely because of the

religious content of the paintings). 

Thus, the Establishment Clause does not require that private

religious speech be excluded entirely from government forums.

Chandler v. Siegelman, 230 F.3d 1313 (11 Cir. 2000) (public th

prayer by students would not violate Establishment Clause if not

sponsored by school); Concerned Women for America v. Lafayette

County, 883 F.2d 32 (5 Cir. 1989) (public library could not exclude th

religious group from use of its auditorium, when it had made facility

available to wide variety of other groups).

In this instance, the coupons for Shea’s Maze were included in

materials distributed by the Carroll County Public Library, a

government entity. However, those coupons ) like other incentive

materials provided by private businesses ) were clearly not a

government publication, but material typically prepared by private

businesses for distribution by mail, newspaper, and other means.

Moreover, the coupons were included not as the speech of the

government, but as a “prize” for those who signed up for the reading

program. The basis for their selection was presumably not

endorsement of any particular product or message associated with a

product, but rather the need to include a variety of items of interest

to children. In our opinion, the inclusion of a coupon for a business

that employs religious references in its trademark would not

constitute government endorsement of religion.5

B. Freedom of Speech

You have asked whether the deletion of the biblical reference

from the coupon violated free speech rights. We understand that

there is some disagreement about the circumstances of the deletion

– i.e., whether Shea’s Maze consented to the alteration of the

coupon, or whether the library staff reasonably believed that the
Gen. 244] 249

business had agreed to allow distribution of the coupon without the

biblical reference. An Attorney General’s opinion is not an

appropriate forum to resolve such factual questions. However, there

appears to be no dispute that the library elected not to distribute

material with a biblical reference. Thus, without attempting to

resolve the circumstances of the deletion of the biblical reference,

we consider whether it would have violated the free speech rights of

the business if the library had simply declined to include its coupon

in the reading program packet, on the basis that the coupon

contained religious subject matter. 

The First Amendment of the United States Constitution

provides that “Congress shall make no law ... abridging the freedom

of speech.” Maryland Declaration of Rights, Article 40, provides

that “every citizen of the State ought to be allowed to speak, write

and publish his sentiments on all subjects.” The rights granted by

the Maryland provision are substantially the same as those granted

by the free speech clause of the federal constitution. Jakanna

Woodworks, Inc. v. Montgomery County, 344 Md. 584, 595, 689

A.2d 65 (1997).

Whether a government agency has unconstitutionally excluded

a private speaker from a government forum depends in part on the

nature of the forum. Good News Club v. Milford Central School,

121 S.Ct. 2093 (2001). Limitations on speech in a traditional public

forum must be narrowly tailored to accomplish a compelling

governmental interest. Capitol Square Review & Advisory Board v.

Pinette, 515 U.S. 753, 761 (1995). 

However, an agency may restrict access to a nonpublic forum

so long as the restrictions are reasonable and are not an effort to

suppress expression merely because public officials oppose the

speaker’s view. Cornelius v. NAACP Legal Defense & Education

Fund, 473 U.S. 778, 803 (1985). “Control over access to a

nonpublic forum can be based on subject matter and speaker identity

so long as the distinctions drawn are reasonable in light of the

purpose served by the forum and are viewpoint neutral.” Id. at 806;

see also Good News Club, 121 S.Ct. at 2099-100. 

Cornelius involved a united charity campaign operated by the

federal government among its employees. Advocacy groups that

sought to benefit from the charity drive challenged rules that

excluded any group that attempted to influence the outcome of

political elections or the determination of public policy. The Court

found that the charity drive was a nonpublic forum and analyzed the
250 [86 Op. Att’y

reasonableness of the restriction in light of the purpose of that

forum. It concluded that the rules were reasonable, stating that the

government could reasonably conclude that dollars spent on food for

the poor are more likely to be effective than dollars spent on

litigation, that including controversial groups could reduce

participation to the detriment of the program, and that excluding

such advocacy groups could avoid the appearance of political

favoritism. 473 U.S. at 809-11. The Court noted that “[e]ven if

some incompatibility with general expressive activity were required

... it would be administratively unmanageable if access [to the

nonpublic forum] could not be curtailed in a reasonable manner.”

Id. at 809. The Court declined to decide whether the exclusion of

plaintiffs was motivated by a desire to suppress their point of view

and left the issue of viewpoint discrimination for the lower court on

remand. Id. at 812-13.

In subsequent cases the Supreme Court has acknowledged that

the distinction between permissible subject matter restrictions and

impermissible viewpoint discrimination “is not a precise one.”

Rosenberger v. Rector and Visitors of the University of Virginia, 515

U.S. 819, 8341 (1995). In Rosenberger, a student publication with

a religious editorial viewpoint challenged a state university’s refusal

to provide it with the same financial support afforded other student

publications. The Court concluded that the university’s policy did

not exclude religion as a subject matter, but rather disfavored

religiously-inspired editorial viewpoints on otherwise permitted

topics (e.g., racism, crisis pregnancies, eating disorders, music). Id

at 826, 831. Thus, the policy discriminated against religiouslymotivated viewpoints.

On the other hand, a neutral government policy restricting a

nonpublic forum to commercial speech but excluding political and

religious speech has been upheld, so long as the policy is not used

simply to exclude a disfavored perspective on otherwise permitted

topics. For example, in DiLoreto v. Downey Unified School

District, 196 F.3d 958 (9 Cir. 1999), cert. denied, 529 U.S. 1067 th

(2000), a school district policy permitted only commercial

advertising at a high school baseball field. The Ninth Circuit held

that the policy did not violate the free speech rights of a prospective

advertiser who was denied the opportunity to display the Ten

Commandments and a religious message. Similarly, in Children of

the Rosary v. City of Phoenix, 154 F.3d 972 (9 Cir. 1998) (White, th

J., ret.), cert. denied, 526 U.S. 1131 (1999), the court held that a ban

against noncommercial advertising on municipal buses, which

effectively barred religious and political advertising, did not
Gen. 244] 251

 While religious speech cannot be excluded from a public forum 6

on the grounds that some may find it offensive, Stewart v. District of

Columbia Armory Board, 789 F.Supp. 402 (D.D.C. 1992), Cornelius

makes clear that speech may be excluded from a nonpublic forum on that

basis if it may adversely affect participation in a program. 

constitute viewpoint discrimination. Cf. Summum v. City of Ogden,

152 F. Supp. 2d 1286, 1293-94 (D. Ut. 2001) (free speech guarantee

did not require city to accept and display gift of stone tablet

summarizing tenets of Summum religion with other monuments in

town park); Tenafly Eruv Ass’n, Inc. v. Borough of Tenafly, 155

F.Supp. 2d 142 (D. N.J. 2001) (upholding town’s decision to refuse

permission to religious organization to place ceremonial religious

demarcation on telephone poles in town’s right of way). 

A “goodie bag” distributed by a public library as part of its

reading program is not open to all speakers, or even to all speakers

on certain topics. Rather, it includes materials developed by the

library for the program and prizes selected by the library staff to

induce children and their parents to participate in the program. It is

most appropriately characterized as a nonpublic forum. A decision

not to include certain types of subject matter in the packet does not

violate free speech guarantees, unless that decision is unreasonable

in light of the purpose of the packet or is based on the viewpoint of

the speaker. 

In our opinion, it would not be unreasonable for a public

library to adopt a policy excluding certain subjects from the reading

program packet. For example, the library might reasonably conclude

that materials promoting violence, having sexually explicit content,

or extolling alcoholic beverages are not appropriately included in a

packet distributed to young children. For somewhat different

reasons, the library might also exclude partisan political material.

Cf. Hazelwood School District v. Kuhlmeier, 484 U.S. 260, 272

(1988) (public school could refuse to sponsor student speech that

would “associate the school with any position other than neutrality

on matters of political controversy”). 

The library could also conclude that inclusion of sectarian

religious references in the packet, while acceptable to many in the

community, might discourage some children from participation in

the reading program. Moreover, the library could reasonably be 6

concerned that the use of incentive items alluding to a particular

religion might raise a question as to the library’s neutrality on
252 [86 Op. Att’y

religious issues, even though inclusion of that material would not

have violated the Establishment Clause. See Children of the Rosary,

154 F.3d at 979 (apart from concern about Establishment Clause,

city had “especially strong interest” in “maintaining neutrality on

political and religious issues”).

Finally, unless the library chose to include materials promoting

other religious groups or disparaging religion, we do not believe that

exclusion of the coupons would have constituted viewpoint

discrimination. Unlike Rosenberger, the forum in this case – the

reading program packet – was not created to support the expression

of various private viewpoints, but to provide tangible incentives to

stimulate interest in the reading program. A neutral policy limiting

the subject matter of the incentive items would not discriminate

against religiously-inspired viewpoints on otherwise permissible

topics. 

In sum, it is our opinion that a library policy not to include

coupons with sectarian religious references could be compatible with

the free speech guarantees of the federal and State constitutions.

III

Conclusion

In our opinion, distribution of a coupon with a scriptural

reference would not have violated the Establishment Clause. At the

same time, excluding the coupon would not have violated

constitutional guarantees of free speech.

J. Joseph Curran, Jr.

Attorney General

Kathryn M. Rowe

Assistant Attorney General

Robert N. McDonald

Chief Counsel

 Opinions & Advice