More blurring between religion and government in America

June 21, 2012 • 4:51 am

The video below discusses a particularly pernicious decision by the U.S. Supreme Court in 2001:  Good News Club v. Milford Central School.  Sean Faircloth, director of strategy and policy for the Richard Dawkins Foundation, interviews Katherine Stewart, author of The Good News Club: The Christian Right’s Stealth Assault on America’s Children.

Stewart found out that her children were attending a school where after-school programs of “Bible Study” were far more than that: they were attempts to brainwash children with evangelical Christianity and induce them to convert their peers.  The school prohibited the activity, which still continued for a year while the case wound its way through two lower courts, both affirming that religious speech of that nature did not belong in a public school.

But the U. S. Supreme Court (which, of course is stacked with right-wing faithheads), affirmed the right to have what is essentially a church service in a public school. This was done on the basis of the Constitution’s “free speech” clauses, holding that religious speech in public schools is a form of free speech.

It was a terrible decision, and further erodes the already-weakening wall between church and state in America, a wall erected by the Constitution’s First Amendment.

Here’s the summary of the case, and the Supreme Court’s decision, from Oyez, a website of the Chicago-Kent College of Law. 

Facts of the Case 

Under New York law, Milford Central School policy authorizes district residents to use its building after school for certain activities. Stephen and Darleen Fournier were district residents eligible to use the school’s facilities. They sought approval of their proposed use and sponsorship of the Good News Club, a private Christian organization for children. The Fourniers submitted a request to hold the Club’s weekly afterschool meetings at the school. Milford denied the request reasoning that the proposed use, including singing songs, hearing Bible lessons, memorizing scripture, and praying, was the equivalent of religious worship prohibited by the community use policy. The Club filed suit alleging that the denial violated its free speech rights under the First and Fourteenth Amendments. Ultimately, the District Court granted Milford summary judgment. In affirming, the Court of Appeals held that because the subject matter of the Club’s was “quintessentially religious”, and the activities “fall outside the bounds of pure ‘moral and character development,'” Milford’s policy of excluding the Club’s meetings was constitutional subject discrimination, not unconstitutional viewpoint discrimination.


Did Milford Central School violate the First Amendment free speech rights of the Good News Club when it excluded the Club from meeting after hours at the school? If a violation occurred, was it justified by Milford’s concern that permitting the Club’s activities would violate the Establishment Clause?

You can hear the oral arguments at the court here.
Decision: 6 votes for Good News Club, 3 vote(s) against
Legal provision: Amendment 1: Speech, Press, and Assembly

Yes and no. In a 6-3 opinion delivered by Justice Clarence Thomas, the Court held that “Milford’s restriction violates the Club’s free speech rights and that no Establishment Clause concern justifies that violation.” “When Milford denied the Good News Club access to the school’s limited public forum on the ground that the Club was religious in nature, it discriminated against the Club because of its religious viewpoint in violation of the Free Speech Clause of the First Amendment,” wrote Justice Thomas.

Have a listen to how Stewart describes the kind of “free speech” that the Good News Club was disseminating:

It’s going to take a long, long time before the appointment of religious, conservative justices to our Supreme Court will cease having a their pernicious influence on the U.S. government.

I keep hearing the ringing last paragraph of Judge Overton’s decision in McLean v Arkansas Board of Education, in which creationists tried to worm their way into science classes. It applies here, too:

The application and content of First Amendment principles are not determined by public opinion polls or by a majority vote. Whether the proponents of Act 590 constitute the majority or the minority is quite irrelevant under a constitutional system of government. No group, no matter how large or small, may use the organs of government, of which the public schools are the most conspicuous and influential, to foist its religious beliefs on others.

47 thoughts on “More blurring between religion and government in America

  1. The Overton decision is quite different than the Milford one in that the former cites use of “government power” and Milford is about the use of a public school as a “place”.

    Overton is about the influencing ability of government and Milford is concerned whether a public venue is an appropriate location for voluntary religious discussion.

    Overton is far more substantive, in my mind, than Milford. People can worship rocks (as they have), planets or nothing at all and I don’t see anything wrong with the voluntary use of public buildings to do so. It’s a whole ‘nother thing if it’s mandatory and communicated by public officials, including teachers.

    1. You need to watch the video to see how the Good News club was blurring the line between real “school” activities and religion.

      1. I looked at it briefly (don’t have 17 minutes right now & will digest more fully), but two quick questions:

        1) would the content and behaviors engendered by the Good News Club meetings be any different had the meetings not taken place at a school? And if not, isn’t it just an example of disagreeable, sometimes ugly free speech which is already prevalent (check out the comments section on most CNN articles)?

        2) Which Justices voted for the decision? It actually looks more bipartisan (eg 5-4) than usual.

        Ok, it was really three questions.

        1. Pertaining to question 1, I’d say “yes” there is a difference. Young kids can not be expected to understand the difference between the authority of their educator with the religious advocacy. In a child’s mind, and in the minds of parents who aren’t paying close attention, this is all “school”.

        2. “1) would the content and behaviors engendered by the Good News Club meetings be any different had the meetings not taken place at a school?”

          Yes. Many of the behaviors would not be possible if the meetings where not at school. And the effects on the student body of the school as a whole would not be the same if the meetings took place at some other venue. That is one of the main arguments against the Good News Club.

          “And if not, isn’t it just an example of disagreeable, sometimes ugly free speech which is already prevalent (check out the comments section on most CNN articles)?”

          No, it is not. They are preying on children, which we rightfully afford all kinds of legal protections because we consider them to be incapable of being responsible in any legal way because of their undeveloped cognitive abilities and lack of experience. And an organ of government, public schools, is being used by them to do so. If you think that indoctrinating children in a particular set of religious beliefs is anything like free speech you are seriously confused. If you think the Good News Club is not intentionally seeking out children to indoctrinate them in their beliefs you are being naive. You will benefit from taking some time, when you have it, to read their mission statement, research how they have been operating, and read the Supreme Court’s decision.

          Regarding #2, 6-3 with Breyer concurring “in part” only. Why? More bipartisan? You can’t get less bipartisan than the current Supreme Court. Too many justices vote by party line and then devise post hoc rationalizations for their decisions. One or two like that? No major problem. Four or five like that? We’re fucked.

  2. Jerry, with respect, I feel you are missing the point. This was an after school club. I believe the decision was correct.

    1. I don’t think it’s as simple as that. Take a look at the Anti-Defamation League’s summary of when after-school religious activities can be permitted:

      * The group may meet only if the school allows other outside organizations or clubs to meet at the same time.

      * The school must assume the duty of ensuring that it does not appear to be endorsing or disapproving of religion.

      * The school district must proactively work to prevent even the perception that it may be endorsing the club’s religious activity. In Good News Club v. Milford Central School, 533 U. S. 98 (2001), the U. S. Supreme Court found no perceived endorsement of a religious club’s activities because the club meetings were not held in elementary school classrooms, the instructors were not school teachers, the students ranged in age, and the children who attended the club had obtained signed permission slips from their parents.

      * The school may not allow the club or organization to solicit students, unless it allows all groups to do so. If the school allows such solicitation, it must make sure that no proselytizing or religious message is part of the communication.

      * A school district must take extra care to make sure that students from minority religions are not teased or made to feel unwelcome or left out merely because they choose not to attend a religious club meeting.

      Several of these appear to have been violated by the Good News club.

      And there’s the question of whether regular school teachers can serve as Bible advocates after hours (also from that site):

      May a teacher serve as an instructor in a religious club that meets at the school where the teacher works?

      In Wigg v. Sioux Falls School District, 70 the U. S. Court of Appeals for the Eighth Circuit recently found that an elementary school teacher could participate in a religious club meeting where she teaches. However, the decision is inconsistent with the U. S. Supreme Court’s decision in Good News Club v. Milford Central School because it omitted discussion of the Supreme Court’s finding that no perceived endorsement of religion occurred by allowing a religious club on campus because “… instructors [were] not school teachers.” 71 Until the U. S. Supreme Court definitively answers this question, ADL strongly recommends that teachers not participate in religious clubs meeting in schools where they work.

      Note that as Stewart says in the video, regular teachers are now teaching Good News Clubs in elementary school classrooms. It’s particularly important that the kids do not perceive that their teachers are religiously biased in a way that might impugn the kids’ own faith (or lack of faith). Teachers are authority figures, and remember that these kids are aged 5-11. At any rate, the Supreme Court decision implied that having regular teachers engage in after-hours religious instruction might be a violation of the First Amendment.

  3. But the ADL is not an arbiter of Constitutional Law and as admirable as their activities are, they are simply expressing their opinion. It may be a thoroughly-researched and compelling one, but it is still an opinion.

  4. The Good News Club seems to be quite transparently using the school grounds in order to gain access to new converts. The First Amendment violation of the club (and not the school) is very clear in my mind. If this club wants to advertise around town and hold meetings on private properties (a church perhaps?) I see no legal problems. They do not want to do that, of course, because it will limit the access they would have to children who must go to school if they want an education.

    I suppose we need a similar Muslim extremist group to lobby for similar privileges to drive home why allowing this sort of thing is a very bad idea.

    1. This is exactly the point that was raised in the video re: Kabbalah. As soon as someone pointed out the nature of that organization, they were kicked out. It is always about allowing Christians access to potential converts, not so much minority religions.

      1. I haven’t seen the video, but if the school allowed Christian clubs but not other religious clubs, then yes, that was a violation.

        If the school allowed any religious club to use their space after school, probably not a violation.

        Having another religion (or atheists) try to use a supposedly open forum is a very common and effective tactic for rooting out unconstitutional endorsement. The state/local government controlling the forum must then permit those other groups to use it, or shut the entire operation down. Typically, they shut it down.

        I am not sure what extra measures the ADF thinks are necessary to draw a clear distinction between school and after school. You’re sitting in a mandatory attendence class. The bell rings. Everyone gets up – most leave the building. The busses taking people home leave, packed with students. The next set of activities aren’t mandatory. What else do you want, a big gong?

  5. I don’t agree that the fact a religious club divides children into believers and non- believers is a constitutional violation. I consider that to be constitutionally irrelevant. What is relevant is government advocacy or promotion either for or against belief or nonbelief. Government needs to be neutral, the students don’t need to be neutral. There is still complete freedom here for schools to teach secular knowledge, regardless of the implications of that knowledge vis-a-vis beliefs, because while knowledge discriminates between beliefs, the school itself is still being neutral by confining itself to promoting knowledge.

    So public school teachers, or other staff, actively participating in religious clubs is a problem. Or the participation of any adult in the school promoting a religious club in or near the school building outside the room where and the club meets and not while the club is meeting is a problem. The details like this matter. But generally speaking, I don’t see religious clubs in public schools to be an EC violation. I don’t think the fact that the students may be taught to evangelize other students is a constitutional problem. Not all problems, even real problems, are constitutional problems.

    1. “I don’t agree that the fact a religious club divides children into believers and non- believers is a constitutional violation. I consider that to be constitutionally irrelevant. What is relevant is government advocacy or promotion either for or against belief or nonbelief.”

      These two issues are inextricably linked. The division caused by religious beliefs is precisely the effect that the establishment clause is intended to prevent. Public schools are an organ of the government. A prominent one. As you say, the government is not supposed to advocate or promote belief or non belief in any way. That is precisely what is happening with this Good News Club bullshit. The Supreme Court is wrong. Their decision in this matter goes against all previous precedent.

      What makes the case even clearer is that if the schools are required to allow the Good News Club to do what they are doing in public school facilities, then they also need to allow Islamic, Jewish, Hindu and any other religious groups the same opportunities with the same lack of restrictions. Do you think that the Supreme Court would have ruled in favor of any of these other religious groups under the same circumstances? Not a chance. No other religious group except christians have ever made it as far as the Supreme Court for something like this. Advocacy test failed.

      Even given the Supreme Courts decision the Good News Club is in violation of law. Read the decision and compare what is written there to how the Good News Club is currently functioning. They are doing things that in the Supreme Court decision are used as examples of behavior that would have caused the court to rule against the Good New Club.

      1. if the schools are required to allow the Good News Club to do what they are doing in public school facilities, then they also need to allow Islamic, Jewish, Hindu and any other religious groups the same opportunities with the same lack of restrictions.

        Yes, this is true. But this has happened. Offhand I can’t think of any specifically religious clubs that went to court over this, but gay-straight clubs have taken advantage of Lamb’s Chapel and Good News Club.. For example, google Gonzalez v. School Board of Okeechobee County and Gay-Straight Alliance of Yulee High School vs. School Board of Nassau County (for the last – the school caved before going to court, so there is no official ruling).

        Those are not religious exmaples per se, but they are certainly examples of the courts siding with a minority group against a conservative christian majority.

        1. Yes, and they had to fight in court in order for the already existing rules to be fairly applied in their case.

          But, the religious aspect is what this discussion, and the OP, are about. I can’t say absolutely that there are no examples of other, non christian, religious groups that have won Supreme Court cases allowing them to engage in activities similar to the Good News Club in public school facilities, but I am fairly sure. After spending some time searching I have not found any. However, I have heard and read of many instances where non christian religious groups were given the boot under similar circumstances, often not making it to any court, let alone the Supreme Court.

          Actually, though there may be some, I don’t remember any instances involving non christian religious groups displaying such egregious overstepping of boundaries or decency as that displayed by the Good News Club and a few other christian groups.

          1. The issue is complicated by the fact that, when these issues do come up, I’m sure a lot are settled out of/before court. A threatening letter from the ACLU about allowing that Jewish group to meet, the school acquiesces, and the incident never makes the news.

            My point being, whatever this supreme court might do in the future, I’m confident in saying (admittedly without solid evidence) that lower courts ARE applying Lamb’s Chapel and Good News to nonChristian clubs to give them equal access, right now. To be sure, someone’s got to be willing to bring a case before a school might institute a constitutional policy, but that is true about many areas of law (a polluter won’t obey EPA guidelines until you sue them, etc…), and does not really support the notion that the court system shows favoritism to Christian clubs.

    1. I found only state chapters and contact people on this site. To find lists of schools hosting Good News Clubs I had to dig quite a bit deeper. The first step is to shine the light of day on them.

  6. So they get to use my tax-dollars to peddle their bullshit to CHILDREN? Bad enough their houses of worship are tax free.

    1. They call it “planting” churches. And it’s not just tax-free (which affects us all)—it’s rent-free (which might not affect us, but it sure pisses me off anyhow).

  7. If you think Milford was decided correctly, if you think the Good News Clubs are no big deal, I urge you to read Stewart’s book. It is chilling.

  8. Wherever these ‘clubs’ spring up, the secular parents of the district need to organize and run a ‘Comparative Religion’ club in the same school, concentrating on ‘biblical morality’. The school cannot object to it, but once the subject matter becomes known to the ‘good news’ folk, it will bring the issue to a head. I do such a session for a discussion group, made up of agnostics and cultural Christians, and even that group is, in fact, virually unaware of the miserable morality contained in the bible. They find it most enlightening.

  9. Teachers runs “prayer” clubs during lunch. A principal “urges” students to go out for Prayer at the Flagpole. And of course specifically Christian prayers (“In Jesus Name we pray” for instance) at school functions. Disasters are announced with requests for prayers for the victims. Financial assistance for a weekday version of Sunday School at an official venue will hardly make that much more difference. The only question seems to me to be whether we could rely on the US courts to enforce the Constitution? I think not.

    1. Well, the whole idea is to create / sustain a society in which everyone can coexist equitably and be proud, or at least satisfied, with the ethics embodied by the society and its laws.

      Those people that think that this idea is worth striving for need to apply pressure against those actions which are pushing us back towards the same old ignorant peasant – rich nobleman type society that humans always seem to degrade to.

      I agree 100%. We can not currently rely on US courts to enforce the Constitution. Or, rather, to agree to interpretations that earlier courts have made, and to interpret it in the spirit that the framers of the Constitution made pretty clear in other documents that they intended it to be interpreted in. It is extremely ironic how conservatives, still, bloviate about “Liberal” judges/courts interpreting the Constitution in radical ways whenever they don’t like the decision. The current court is the most radical the country has ever had. Lets all fervently hope that any future Supreme Court appointments do not result in the conservative religious faction ending up with a clear majority or we will truly be up the creek without a paddle, in a leaky canoe.

    1. For the same reason that pedophiles hang around playgrounds. It is the best place to find innocent recruits.

  10. I would have to agree with the Supreme Court in general. Allowing arbitrary groups (including religious groups) to rent buildings after school doesn’t constitute government endorsement of religion.

    What really leaves a bad taste in my mouth, though, is the fact that these particular Christians groups compel the kids to do certain things during school hours with threats of hellfire. It’s not just a get-together for kids who want to go, which would be okay.

    For instance, they tell them that they need to give certain Christian tracts to their non-Christian friends or else their friends will burn in hell. Then they hide behind the kids by saying it was their choice because they just love their friends…

    In another example, the adults organize a prayer/proselytism event and try to hide behind the kids by saying it was the kids’ idea idea and that the kids planned it. But that’s obviously bullshit when you see that all across the country, kids from these Christian after-school clubs just happened to plan the same religious activity at the same time (during school hours) on the same day.

    It’s clear that the adults are coercing the kids to do things that the adults are not allowed to do while pretending that it was the kids’ decision. And there should be a way to stop that, but I can’t think of any obvious rule that you could apply to distinguish that case.

    1. A simple “No organized religious activities on public school property” rule would work pretty well.

      1. I agree that it’s distasteful, coercive, disingenuous and likely morally wrong.

        That doesn’t make it Un-Constitutional, though.

        1. I thought you were just asking for a rule that rule that you could apply. You seem to have intended “you could apply” to mean “would be OK with the current Supreme Court.”

          In my mind a rule like this should be constitutional, although the current Jebus-loving court seems to disagree, given the wrongly (IMO) decided Milford case.

          1. I don’t think the ruling is wrong as long as its equally applied. And I think that’s really the issue. Given the majority status of Christians in this country, it is easy for them to get “their way”. And I think that’s fine.

            As long as any other group, religious or not is treated the same way. The Constitution protects offensive, wrong and disgusting speech.

            The issue of whether children believe that the venue of instruction bestows government sponsorship of religion, though, is an interesting point. Be curious to see what a Federal Appeals Court thinks of that.

            1. It isn’t fine that Christians get “their way” because they are the majority. At all. “Getting their way” is inherently contrary to the very idea of everyone being treated equally. Because their “way” is to treat others differently. Because “their way” has everyone else going to hell. Gays need to be fenced in. Adulterers need to be stoned. “Their way” can no be “equal” in any sense of the word.

              1. I agree that it’s offensive and wrong. That doesn’t make it unconstitutional, which is the point of the thread. As long as all other groups can avail themselves of the same venue, it doesn’t matter constitutionally. The fact that this group cloaks itself in religious righteousness makes it worse, but still not unconstitutional.

              2. You keep saying that. To the extent that there is a court decision (Milford) that says it is “OK”, well, that is by definition true. But courts can reverse themselves. And the reason that they do so (rarely, true) is that it is recognized that a mistake has been made. This is, IMO, one of those situations where the decision was at odds with the founding principles of the Constitution.

          2. I was the original commenter, and what I meant was that it’s hard to find a rule that would allow Christian groups to use rooms after school like any other group and that would allow kids to speak and act on their own behalf, which I think are both constitutionally valid, but that would prevent adults from employing kids as their private army to project influence into public schools.

            Right now it’s easy for them to employ these kids as tools in their national agenda to infiltrate the public schools, but it’s hard to prove that a kid is acting on their orders except in the obvious cases when kids around the country “coincidentally” organize the same event at the same time on the same day.

            I think a rule banning organized religious groups would be discrimination against religion (and arguably privileging atheism), which is just as unconstitutional as promotion of religion.

      2. Your rule requires that the state decide what counts as a religious activity. IOW, it entangles the state with religion.

        It also does nothing to prevent the unfair favoritism the rule is supposed to prevent. A school principal could rule that an after-school bible study class is not ‘religious activity,’ its history/comparative religion. Then he could rule that a Torah study class is religious activity. Same bigotry we have now, just under a different rule.

        So, basically, your rule doesn’t solve the problem plus it requires school administators make an additional assessment that they are untrained to make. I would argue that it’s thus a worse solution than the current one.

        1. ll rules that are enforced by law require the state to articulate the rule. Are you arguing that there can be no rule separating state and religion? Really?

          On your second point, I fail to see how people redefining words to suit their purpose is a valid argument. It implies that laws against bank robbery won’t work if the criminals say “I wasn’t robbing a bank, I was liberating the money.”

          Come on.

  11. Thomas is an imbecile – I’m betting he’s a Jesusian too. Going by his arguments, religious groups can make demands of the government and the government must obey the religious groups or else the government is discriminating against religion.

  12. Darrelle said:

    “These two issues are inextricably linked. The division caused by religious beliefs is precisely the effect that the establishment clause is intended to prevent. Public schools are an organ of the government. A prominent one. As you say, the government is not supposed to advocate or promote belief or non belief in any way. That is precisely what is happening with this Good News Club bullshit….”

    Not only are these separable, they are separate, and the mere fact that a club which meets in the school after hours favors some views over others doesn’t implicate the school or government in any first amendment violation. To violate the EC, school staff would need to participate in some way beyond providing a room for students and ensuring a staff member was there to enforce generally applicable rules of good behavior, since that is what the school does generally for all after-school clubs. Alternatively the EC could be violated if the school discriminated by allowing some clubs but disallowing others based on the viewpoint adopted by the club. The fact that a student club has a viewpoint, and therefore divides the students by viewpoint, is an inevitable result of individual freedom of association, free expression, and free exercise, and is not enough to violate the EC. The EC is not about suppressing or censoring religious expression of citizens, it is only about ensuring that government doesn’t show favoritism for or against religious beliefs.

  13. JAC, you got a bit carried away here and fell into arguing here that Milford should have been allowed to ban the club’s speech because their ideas are harmful to children. That is, ironically, itself a pernicious idea that would gut free speech rights if adopted. Thank goodness the dissenting Supreme Court justices in Milford, who voted to allow Milford to ban the Good News Club, didnt agree with you on that. The antidote to pernicious speech is more speech, not censorship. Justice Stevens argued that the school’s ban on school grounds use by clubs with a primarily religious purpose was constitutional because it was “viewpoint neutral.” That’s at least questionable, because the line between primarily religious and primarily educational is a judgment call and so in some cases might be applied discriminatorily. The other two dissenters, Ginsberg and Souter, argued the ban was constitutional because as a matter of fact the club was actually holding a worship service. Notice that the justices did not argue the content was harmful. Milford was actually a tough case, balancing free speech against the need to separate church and state, and while I agree with Ginsberg and Souter here, it’s hardly the example of naked political partisanship you claim it to be (unlike some other cases).

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