Preclude to a Church-State: The Supremes Set the Stage for Faith-Based Initiatives

Late in its 2000 Term, the United States Supreme Court decided an important Free Speech case, Good News Club v. Milford Central School, which could play an important role in determining the constitutionality of faith-based initiatives. In Good News, six Justices joined a majority opinion to hold that a public school "violated the free speech rights” of a religious club for elementary school-aged students by refusing to permit the club to meet on its premises after regular school hours. Despite the religious worship and proselytizing characteristics of the club's meetings, and the fact that its meetings were directed by a minister and his wife, a majority of five Justices found that the school's denial of the club's request to meet on its premises could not be justified as necessary to avoid "violating the Establishment Clause."Upon a cursory examination, Good News appears to be not much more than a logical extension of the Free Speech and Establishment Clause principles the Court established in a twenty-one-year-old chain of cases involving public fora established by public educational institutions. The chain includes: Widmar v. Vincent; Board of Education of Westside Community Schools v. Mergens; Lamb’s Chapel v. Center Moriches Union Free School District; and Rosenberger v. Rector & Visitors of University of Virginia.The extension is three-fold: (1) the forum at issue extends from an open public form to limited public fora; (2) the targeted audience of the affected group extends from the general adult public, to college students, to high school students, to elementary school students; and (3) the affected group's expression extends from religious-based commentary on contemporary secular issues to various forms of religious worship, instruction, and discussion.On closer examination, Good News arguably represents a significant change in church-state jurisprudence masked as a mere incremental extension of long-existing Free Speech and Establishment Clause principles. The extension bridges a huge factual gap by adapting Free Speech and Establishment Clause principles originally applied to university students seeking access to a university's open public forum in order to engage in religious worship and discussion to a professional clergyman’s attempts to gain access to a school district's elementary school in order to proselytize elementary school-aged children and engage them in religious worship and instruction. More importantly, this extension applies Free Speech rules developed in cases involving discussions of secular issues from a religious perspective to speech that could be fairly characterized as purely religious in nature, thereby blurring, as to religious speech, the distinction between content discrimination and viewpoint discrimination. Further, Good News makes it clear that the United States Supreme Court will never accept an Establishment Clause justification for excluding a religious speaker from a public forum, traditional, designated, or limited. In fact, the Good News Free Speech and Establishment Clause issues are resolved in a manner that may establish the basis for the Court to uphold government giving religious organizations faith-initiatives grants to tackle secular problems with religious methods.