LAMB‘S CHAPEL ET AL. v. CENTER MORICHES UNION FREE SCHOOL DISTRICT ET AL.
No. 91-2024
Supreme Court of the United States
Argued February 24, 1993-Decided June 7, 1993
508 U.S. 384
John W. Hoefling argued the cause for respondents. With him on the brief for respondents Center Moriches Union Free School District et al. was Ross Paine Masler. Respondent Robert Abrams, Attorney General of New York, filed a brief pro se. With him on the brief were Jerry Boone, Solic-
JUSTICE WHITE delivered the opinion of the Court.
*Briefs of amici curiae urging reversal were filed for the United States by Solicitor General Starr, Assistant Attorney General Gerson, Deputy Solicitor General Roberts, Edward C. DuMont, Anthony J. Steinmeyer, and Lowell V. Sturgill, Jr.; for the American Civil Liberties Union et al. by David H. Remes, T. Jeremy Gunn, Steven R. Shapiro, John A. Powell, and Elliot M. Mincberg; for the American Federation of Labor and Congress of Industrial Organizations by Robert M. Weinberg, Laurence Gold, and Walter A. Kamiat; for the Christian Legal Society et al. by Kimberlee Wood Colby, Steven T. McFarland, Bradley P. Jacob, and Karon Owen Bowdre; for Concerned Women for America et al. by Wendell R. Bird and David J. Myers; for the National Jewish Commission on Law and Public Affairs by Nathan Lewin and Dennis Rapps; and for the Rutherford Institute by James J. Knicely and John W. Whitehead.
Jay Worona, Pilar Sokol, and Louis Grumet filed a brief for the New York State School Boards Association et al. as amici curiae urging affirmance.
Pursuant to
The issue in this case is whether, against this background of state law, it violates the Free Speech Clause of the
I
Petitioners (Church) are Lamb‘s Chapel, an evangelical church in the community of Center Moriches, and its pastor John Steigerwald. Twice the Church applied to the District for permission to use school facilities to show a six-part film series containing lectures by Doctor James Dobson.2 A bro-
The Church brought suit in the District Court, challenging the denial as a violation of the Freedom of Speech and Assembly Clauses, the Free Exercise Clause, and the Establishment Clause of the
The Court of Appeals affirmed the judgment of the District Court “in all respects.” 959 F. 2d 381, 389 (CA2 1992). It held that the school property, when not in use for school purposes, was neither a traditional nor a designated public forum; rather, it was a limited public forum open only for designated purposes, a classification that “allows it to remain non-public except as to specified uses.” Id., at 386. The court observed that exclusions in such a forum need only be reasonable and viewpoint neutral, ibid., and ruled that denying access to the Church for the purpose of showing its film did not violate this standard. Because the holding below was questionable under our decisions, we granted the petition for certiorari, 506 U. S. 813 (1992), which in principal part challenged the holding below as contrary to the Free Speech Clause of the
II
There is no question that the District, like the private owner of property, may legally preserve the property under its control for the use to which it is dedicated. Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U. S. 788, 800 (1985); Perry Ed. Assn. v. Perry Local Educators’ Assn., 460 U. S. 37, 46 (1983); Postal Service v. Council of Green-
With respect to public property that is not a designated public forum open for indiscriminate public use for communicative purposes, we have said that “[c]ontrol over access to a nonpublic forum can be based on subject matter and speaker identity so long as the distinctions drawn are reasonable in
Unkechaug Dance Group
Paul Gibson‘s Baseball Clinic
Moriches Bay Civic Association
Moriches Chamber of Commerce‘s Town Fair Day
Center Moriches Drama Club
Center Moriches Music Award Associations’ ‘Amahl & the Night Visitors’
Saint John‘s Track and Field Program
Girl Scouts of Suffolk [C]ounty
Cub Scouts Pack 23
Boy Scout Troop #414.” 770 F. Supp. 91, 93, n. 4 (EDNY 1991).
The Church claimed that the first three uses listed above demonstrated that Rule 10 actually permitted the District property to be used for religious purposes as well as a great assortment of other uses. The first item listed is particularly interesting and relevant to the issue before us. The District Court referred to this item as “a lecture series by the Mind Center, purportedly a New Age religious group.” Id., at 93. The Court of Appeals described it as follows:
“The lecture series, ‘Psychology and The Unknown,’ by Jerry Huck, was sponsored by the Center Moriches Free Public Library. The library‘s newsletter characterized Mr. Huck as a psychotherapist who would discuss such topics as parapsychology, transpersonal psychology, physics and metaphysics in his 4-night series of lectures. Mr. Huck testified that he lectured principally on parapsychology, which he defined by ‘reference to the human unconscious, the mind, the unconscious emotional system or the body system.’ When asked whether his lecture involved matters of both a spiritual and a scientific nature, Mr. Huck responded: ‘It was all science. Anything I speak on based on parapsychology, analytic, quantum physicists [sic].’ Although some incidental reference to religious matters apparently was made in the lectures, Mr. Huck himself characterized such matters as ‘a fascinating sideline’ and ‘not the purpose of the [lecture].‘” 959 F. 2d, at 388.
The Court of Appeals thought that the application of Rule 7 in this case was viewpoint neutral because it had been, and would be, applied in the same way to all uses of school property for religious purposes. That all religions and all uses for religious purposes are treated alike under Rule 7, however, does not answer the critical question whether it discriminates on the basis of viewpoint to permit school property to be used for the presentation of all views about family issues and child rearing except those dealing with the subject matter from a religious standpoint.
There is no suggestion from the courts below or from the District or the State that a lecture or film about child rearing and family values would not be a use for social or civic purposes otherwise permitted by Rule 10. That subject matter is not one that the District has placed off limits to any and all speakers. Nor is there any indication in the record before us that the application to exhibit the particular film series involved here was, or would have been, denied for any reason other than the fact that the presentation would have
“[a]lthough a speaker may be excluded from a nonpublic forum if he wishes to address a topic not encompassed within the purpose of the forum . . . or if he is not a member of the class of speakers for whose especial benefit the forum was created . . . , the government violates the
First Amendment when it denies access to a speaker solely to suppress the point of view he espouses on an otherwise includible subject.”
The film series involved here no doubt dealt with a subject otherwise permissible under Rule 10, and its exhibition was denied solely because the series dealt with the subject from a religious standpoint. The principle that has emerged from our cases “is that the
The District, as a respondent, would save its judgment below on the ground that to permit its property to be used for religious purposes would be an establishment of religion forbidden by the
We have no more trouble than did the Widmar Court in disposing of the claimed defense on the ground that the posited fears of an Establishment Clause violation are unfounded. The showing of this film series would not have been during school hours, would not have been sponsored by the school, and would have been open to the public, not just to church members. The District property had repeatedly been used by a wide variety of private organizations. Under these circumstances, as in Widmar, there would have been no realistic danger that the community would think that the District was endorsing religion or any particular creed, and any benefit to religion or to the Church would have been no more than incidental. As in Widmar, supra, at 271-272, permitting District property to be used to exhibit the film series involved in this case would not have been an establishment of religion under the three-part test articulated in Lemon v. Kurtzman, 403 U. S. 602 (1971): The challenged governmental action has a secular purpose, does not have the principal or primary effect of advancing or inhibiting religion, and does not foster an excessive entanglement with religion.7
The District also submits that it justifiably denied use of its property to a “radical” church for the purpose of proselytizing, since to do so would lead to threats of public unrest and even violence. Brief for Respondent Center Moriches
We note that the New York State Attorney General, a respondent here, does not rely on either the Establishment Clause or possible danger to the public peace in supporting the judgment below. Rather, he submits that the exclusion is justified because the purpose of the access rules is to promote the interests of the public in general rather than sectarian or other private interests. In light of the variety of the uses of District property that have been permitted under Rule 10, this approach has its difficulties. This is particularly so since Rule 10 states that District property may be used for social, civic, or recreational use “only if it can be non-exclusive and open to all residents of the school district that form a homogeneous group deemed relevant to the event.” App. to Pet. for Cert. 57a. At least arguably, the Rule does not require that permitted uses need be open to the public at large. However that may be, this was not the basis of the judgment that we are reviewing. The Court of Appeals, as we understand it, ruled that because the District had the power to permit or exclude certain subject matters, it was entitled to deny use for any religious purpose, including the purpose in this case. The Attorney General also defends this as a permissible subject-matter exclusion rather than a denial based on viewpoint, a submission that we have already rejected.
The Attorney General also argues that there is no express finding below that the Church‘s application would have been granted absent the religious connection. This fact is beside the point for the purposes of this opinion, which is concerned with the validity of the stated reason for denying the
For the reasons stated in this opinion, the judgment of the Court of Appeals is
Reversed.
JUSTICE KENNEDY, concurring in part and concurring in the judgment.
Given the issues presented as well as the apparent unanimity of our conclusion that this overt, viewpoint-based discrimination contradicts the Free Speech Clause of the
JUSTICE SCALIA, with whom JUSTICE THOMAS joins, concurring in the judgment.
I join the Court‘s conclusion that the District‘s refusal to allow use of school facilities for petitioners’ film viewing, while generally opening the schools for community activities, violates petitioners’
As to the Court‘s invocation of the Lemon test: Like some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again, frightening the little children and school attorneys of Center Moriches Union Free School District. Its most recent burial, only last Term, was, to be sure, not fully six feet under: Our decision in Lee v. Weisman, 505 U. S. 577, 586-587 (1992), conspicuously avoided using the supposed “test” but also declined the invitation to repudiate it. Over the years, however, no fewer than five of the currently sitting Justices have, in their own opinions, personally driven pencils through the creature‘s heart (the author of today‘s opinion repeatedly), and a sixth has joined an opinion doing so. See, e. g., Weisman, supra, at 644 (SCALIA, J., joined by, inter alios, THOMAS, J., dissenting); Allegheny County v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U. S. 573, 655-657 (1989) (KENNEDY, J., concurring in judgment in part and dissenting in part); Corporation of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, 483 U. S. 327, 346-349 (1987) (O‘CONNOR, J., concurring in judgment); Wallace v. Jaffree, 472 U. S. 38, 107-113 (1985) (REHNQUIST, J., dissenting); id., at 90-91 (WHITE, J., dissenting); School Dist. of Grand Rapids v. Ball, 473 U. S. 373, 400 (1985) (WHITE, J., dissenting); Widmar v. Vincent, 454 U. S. 263, 282 (1981) (WHITE, J., dissenting); New York v. Cathedral Academy, 434 U. S. 125,
The secret of the Lemon test‘s survival, I think, is that it is so easy to kill. It is there to scare us (and our audience) when we wish it to do so, but we can command it to return to the tomb at will. See, e. g., Lynch v. Donnelly, 465 U. S. 668, 679 (1984) (noting instances in which Court has not applied Lemon test). When we wish to strike down a practice it forbids, we invoke it, see, e. g., Aguilar v. Felton, 473 U. S. 402 (1985) (striking down state remedial education program administered in part in parochial schools); when we wish to uphold a practice it forbids, we ignore it entirely, see Marsh v. Chambers, 463 U. S. 783 (1983) (upholding state legislative chaplains). Sometimes, we take a middle course, calling its three prongs “no more than helpful signposts,” Hunt v. McNair, 413 U. S. 734, 741 (1973). Such a docile and useful monster is worth keeping around, at least in a somnolent state; one never knows when one might need him.
For my part, I agree with the long list of constitutional scholars who have criticized Lemon and bemoaned the strange Establishment Clause geometry of crooked lines and wavering shapes its intermittent use has produced. See, e. g., Choper, The Establishment Clause and Aid to Parochial Schools-An Update, 75 Calif. L. Rev. 5 (1987); Marshall, “We Know It When We See It“: The Supreme Court and Establishment, 59 S. Cal. L. Rev. 495 (1986); McConnell, Accommodation of Religion, 1985 S. Ct. Rev. 1; Kurland, The Religion Clauses and the Burger Court, 34 Cath. U. L. Rev. 1 (1984); R. Cord, Separation of Church and State (1982); Choper, The Religion Clauses of the
I cannot join for yet another reason: the Court‘s statement that the proposed use of the school‘s facilities is constitutional because (among other things) it would not signal endorsement of religion in general. Ante, at 395. What a strange notion, that a Constitution which itself gives “religion in general” preferential treatment (I refer to the Free Exercise Clause) forbids endorsement of religion in general. The attorney general of New York not only agrees with that strange notion, he has an explanation for it: “Religious advocacy,” he writes, “serves the community only in the eyes of its adherents and yields a benefit only to those who already believe.” Brief for Respondent Attorney General 24. That was not the view of those who adopted our Constitution, who believed that the public virtues inculcated by religion are a public good. It suffices to point out that during the summer of 1789, when it was in the process of drafting the
*The Court correctly notes, ante, at 395, n. 7, that I joined the opinion in Corporation of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, 483 U. S. 327 (1987), which considered the Lemon test. Lacking a majority at that time to abandon Lemon, we necessarily focused on that test, which had been the exclusive basis for the lower court‘s judgment. Here, of course, the lower court did not mention Lemon, and indeed did not even address any Establishment Clause argument on behalf of respondents. Thus, the Court is ultimately correct that Presiding Bishop provides a useful comparison: It was as impossible to avoid Lemon there, as it is unnecessary to inject Lemon here.
* * *
For the reasons given by the Court, I agree that the Free Speech Clause of the
Notes
“1) A FATHER LOOKS BACK emphasizes how swiftly time passes and appeals to all parents to ‘turn their hearts toward home’ during the all-important child-rearing years. (60 minutes.)
“2) POWER IN PARENTING: THE YOUNG CHILD begins by exploring the inherent nature of power, and offers many practical helps for facing the battlegrounds in child-rearing-bedtime, mealtime and other confrontations so familiar to parents. Dr. Dobson also takes a look at areas of conflict in marriage and other adult relationships. (60 minutes.)
“3) POWER IN PARENTING: THE ADOLESCENT discusses father/daughter and mother/son relationships, and the importance of allowing children to grow to develop as individuals. Dr. Dobson also encourages parents to free themselves of undeserved guilt when their teenagers choose to rebel. (45 minutes.)
“4) THE FAMILY UNDER FIRE views the family in the context of today‘s society, where a “civil war of values” is being waged. Dr. Dobson urges parents to look at the effects of governmental interference, abortion and pornography, and to get involved. To preserve what they care about most-their own families! (52 minutes.)
Note: This film contains explicit information regarding the pornography industry. Not recommended for young audiences.
“5) OVERCOMING A PAINFUL CHILDHOOD includes Shirley Dobson‘s intimate memories of a difficult childhood with her alcoholic father. Mrs. Dobson recalls the influences which brought her to a loving God who saw her personal circumstances and heard her cries for help. (40 minutes.)
“6) THE HERITAGE presents Dr. Dobson‘s powerful closing remarks. Here he speaks clearly and convincingly of our traditional values which, if properly employed and defended, can assure happy, healthy, strengthened homes and family relationships in the years to come. (60 minutes.)” App. 87-88.
“A New Age religious group known as the ‘Mind Center’
Southern Harmonize Gospel Singers
Salvation Army Youth Band
Hampton Council of Churches’ Billy Taylor Concert
Center Moriches Co-op Nursery School‘s Quilting Bee
Manorville Humane Society‘s Chinese Auction
Moriches Bay Power Squadron