Establishment Clause Jurisprudence and Lamb's Chapel and Center Moriches and Widmar

The Court reached a rare unanimous decision in this case dealing with after-hours use of public school facilities by a religious group which wanted to show a film series on childrearing. Following the precedent in Widmar (1981), the Court held: (1) that it was viewpoint discriminatory to forbid religious groups from using the public school facility to discuss a subject that it is topic permitted to be discussed generally in that context; and (2) that no Establishment Clause concern could justify an abridgment of free speech otherwise protected by the First Amendment. Thus the case was a combined speech/religion case, with greater emphasis placed by the Court on the former.

Relevant Facts

Lamb's Chapel, an Evangelical church, twice applied to the Center Moriches School Board for permission to show a six-part film series on family and raising children entitled "Turn Your Heart Toward Home" by popular Evangelical speaker and psychologist Dr. James Dobson. The School Board turned them down each time, citing both a New York statute and a school district policy.

Specifically, pursuant to Sec. 414 of the New York Education Law, a school board can adopt reasonable regulations for the use of school property for 10 specified purposes when the property is not in use for school purposes. For example, school property may be used as a polling place or for voter registration drives. Nothing is said in those 10 purposes regarding the availability of facilities for religious purposes. However, the New York Court of Appeals, in 1978, ruled that local boards could not allow student bible clubs to meet on school grounds. The Second Circuit accepted this as the authoritative interpretation of NY Law in 1991. In the wake of the 1978 decision, the Center Moriches School Board adopted its own Rule 7, forbidding use of school facilities for religious use.

In the meantime, however, the Supreme Court acted on Widmar in 1981, which was a kind of "slam dunk" case (8-1) holding that an "equal access" policy for use of public school facilities (this time University facilities) did not conflict with the Establishment Clause. Thus, from the perspective of the Establishment Clause, this case is not a difficult one.

Legal Argument

However, as in Widmar, the Establishment Clause issue is only arrived at in the wake of a Free Speech issue. But this case differs from Widmar, twelve years earlier, in that a new standard is used for free speech violations and that the sole dissenter in Widmar, Justice White, is now writing for the unanimous Court. With respect to the former, the refusal of UMKC in Widmar to allow a religious group to use University facilities was a violation of the First Amendment Speech Clause that any restrictions on speech be "content neutral." By 1993, however, the test was whether the restriction was "viewpoint neutral."

But what does it mean for something to be "viewpoint neutral?" The Second Circuit in 1991 had used this test to uphold the NY statute, reasoning that since every religious group, regardless of its "viewpoint," would be precluded from use of school facilities, the rule was applied in a "neutral" or nondiscriminatory way. However, the Supreme Court framed the issue differently: "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 viewpoint." That is, the Court considered the "subject," with respect to which the State needed to be "viewpoint neutral," to be "family issues and child rearing," whereas the Second Circuit considered the subject to be religion.

But once the "subject" at issue was defined as the Court defined it, the Court further concluded that such discussion of such a subject was permitted under the state staturory law (Rule 10, which permitted public access for "social, civic, or recreational uses") and could not be prohibited because such a prohibition would favor some expressions of the issue over other. Therefore, the School District was not being viewpoint neutral in denying petitioner's request for building use to show the film series.

Once the Court had so decided, it then asked whether the interest the state had in avoiding an Establishment Clause violation may be a compelling one that would justify an abridgment of free speech otherwise protected by the First Amendment. The Court then quickly applied the Lemon test to concluded that, as in Widmar, permitting the public school property to be used for this purpose had neither the purpose nor primary effect of promoting religion nor did it foster an entanglement of church and state.

Other Opinions

Two concurring opinions play on themes already raised in other concurrences, but should mentioned here. Justice Kenndy would still not adopt the "endorsing religion" test of Justice O'Connor in Lynch and assumed by the Court here (see the discussion of his position in the dissent in Allegheny). Justices Scalia and Thomas would seek the overthrow of the Lemon framework. By 1993 Justice Scalia has developed his distinctively visual writing-style, which frequently borders on the intemperate and often seems to be written more for effect than for the substance it communicates. In addition, they would affirm the important role that the state has in encouraging religious belief, citing Article III of the Northwest Ordinance of 1787 and some of the more exuberant (and later-regretted) words by Justice Douglas in Zorach (1952) about positive role of religion in American culture.