- The Washington Times - Thursday, June 21, 2001

Stephen and Darleen Fournier live in Milford, N.Y., roughly an hours drive west of Albany. They sponsor the local Good News Club, a Christian organization for children ages 6 to 12.
In 1996, the Fourniers sought permission to hold their clubs weekly after-school meetings in the Milford Central School. Their request seemed to have a reasonable chance of acceptance, since the school operated under a community-use policy that permitted district residents to use the school for uses "pertaining to the welfare of the community." Under the policy, outside groups like 4-H and the Boy Scouts met in the school after classes. But the Fourniers were turned down. Eventually, they sued, contending that Milford had violated their free speech rights.
Last week, in Good News Club vs. Milford Central School, the Supreme Court sided with the Fourniers by a vote of 6 to 3. It is unclear how the ruling will affect Milford, since the Fourniers long ago found a suitable meeting place for their club. But the decision stands as a welcome judgment against educational and judicial hostility toward religion.
In considering the Fourniers request, Milford interpreted its community-use policy to permit the discussion of moral and character development, even from a religious perspective, but not religious instruction itself. That, of course, was (and is) what the Good News Club engages in, and the Fourniers readily disclosed that Bible stories were discussed, verses were learned (even memorized), and prayers were uttered.
Because the school hadnt allowed other groups offering religious instruction to use its facility, it believed it could exclude the Good News Club without committing what the law calls "unconstitutional viewpoint discrimination."
Both the district court and the U.S. 2nd Circuit Court of Appeals sided with Milford. Fortunately, the Supreme Court, with Justice Clarence Thomas writing for the majority, saw that discrimination had in fact occurred.
Under the schools policy, wrote Justice Thomas, any group could teach moral and character development to children. The Good News Club could be characterized as such a group, he said, but the educators in Milford and the lower federal courts had penalized it because of its "quintessentially religious" (the 2nd Circuits words) nature.
Justice Thomas identified "the unstated principle" held by that court namely, that "any time religious instruction and prayer are used to discuss morals and character, the discussion is simply not a pure " but one that has been "tainted."
In a concurring opinion, Justice Antonin Scalia was characteristically blunt. "From no other group does require the sterility of speech that it demands of ." Where other groups may give reasons why students should conduct themselves in certain ways, the club "may only discuss morals and character and cannot give its reasons why they should be fostered … that God exists and his assistance is necessary to morality. It may not defend premise, and it absolutely must not seek to persuade children that the premise is true. The children must, so to say, take it on faith. This is blatant viewpoint discrimination."
The Supreme Court was understandably upset with the 2nd Circuit. In 1993, the justices unanimously reversed that court in another case from New York, Lambs Chapel vs. Moriches, declaring that religious speech is fully protected by the First Amendment. Appellate courts are bound by Supreme Court rulings, but in the Good News Club case, the 2nd Circuit went its own way.
"Despite our holding" in Lambs Chapel, wrote Justice Thomas, "the Court of Appeals, like Milford, believed that its characterization of the clubs activities as religious in nature warranted treating the clubs activities as different in kind from the other activities permitted by the school."
The Thomas majority found it "remarkable" that the 2nd Circuit failed even to cite Lambs Chapel, "despite its obvious relevance to the case."
The 2nd Circuit wasnt the only federal appeals court that ignored or explained away the controlling legal rule that government may not discriminate against religious expression merely because it is religious.
While the 8th and 10th circuits faithfully applied the rule, the 5th and 9th didnt, thus joining the 2nd in allowing discrimination against religious speech.
In the Good News Club case, the court explicitly noted those contrarian courts and by implication spoke to them as well. That is the additional bit of good news from this case, as is the fact that Clinton appointee Stephen Breyer was part of the six-justice majority. One must hope the lower courts now will respect this precedent and that government hostility toward religious speech no longer will be countenanced.

Terry Eastland is publisher of the Weekly Standard.

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