Good News Club v. Milford Central School – Oral Argument – February 28, 2001

Media for Good News Club v. Milford Central School

Audio Transcription for Opinion Announcement – June 11, 2001 in Good News Club v. Milford Central School

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William H. Rehnquist:

We’ll hear argument now on number 99-2036.

Good News Club v. Milford Central School.

Mr. Marcelle.

Thomas Marcelle:

Mr. Chief Justice and may it please the Court–

This is a free speech case.

On page 13 of its brief in opposition to certiorari, Milford concedes that State law, the same State law at issue in Lamb’s Chapel, requires it to censor petitioner’s speech from its broad community forums at all times, to all audiences because they had a religious purpose.

This Court rejected such an argument in Lamb’s Chapel.

It should reject it in this case as well.

The Second Circuit circumvented this Court’s decision in Lamb’s Chapel by resurrecting a distinction that this Court buried in Widmar.

A distinction between constitutionally protected speech and unconstitutionally protected religious worship and instruction.

Antonin Scalia:

Mr. Marcelle, did you cite Lamb’s Chapel to the Second Circuit?

Thomas Marcelle:

Yes, Your Honor, quite extensively, and dissent as well said, Judge Jacobs said the case couldn’t be squared with Lamb’s Chapel.

Antonin Scalia:

Lamb’s Chapel, if I’m correct, is not even cited in the Second Circuit’s opinion, is that right?

Thomas Marcelle:

That’s correct, Your Honor.

Antonin Scalia:

Isn’t even mentioned?

Thomas Marcelle:

Isn’t even mentioned.

And I think the way they got around Lamb’s Chapel, Your Honor, was really by embracing a distinction that this Court rejected in Rosenberger, a distinction–

Antonin Scalia:

I assume that the judge who wrote the opinion for the Second Circuit was aware of Lamb’s Chapel, not just because you cited it, but because it had reversed an earlier decision of his, isn’t that right?

Thomas Marcelle:

–That’s correct, Your Honor.

He was the author of Lamb’s Chapel that this Court reversed.

And I think the way–

Sandra Day O’Connor:

Mr. Marcelle, could you clarify for us the nature of the right that you are asserting.

Now, could the school district say we are not going to allow access to any groups in off school hours?

Thomas Marcelle:

–Absolutely.

Sandra Day O’Connor:

And you contend that the school has, instead of doing that, opened a limited public forum allowing some groups to use the school in off hours?

Thomas Marcelle:

That’s correct, Your Honor.

Sandra Day O’Connor:

Could the school say only hours after 6 p.m.?

Thomas Marcelle:

Your Honor, yes, they–

Sandra Day O’Connor:

And only certain days a week?

Thomas Marcelle:

–Yes, Your Honor.

Thomas Marcelle:

They have broad discretion, the school board–

Sandra Day O’Connor:

You’re just seeking equal access on the same terms that the school offers it to other groups to benefit the welfare of the community, is that the idea?

Thomas Marcelle:

–Exactly, Justice O’Connor.

We’re not asking for unique access, just equal access.

Sandra Day O’Connor:

What if a church asks for privilege to conduct church services once a week during the hours the school allows?

Thomas Marcelle:

Because, Your Honor, Milford has chosen to create a forum that it’s probably the broadest possible forum you could create, the uses that pertain to the welfare of the community under this policy, I think they would a Mass, or a church service would qualify, but of course, they have the power and the discretion.

Sandra Day O’Connor:

So if one of the local churches came in and said we’d like to use it one day a week to conduct our regular services, that would have to be granted as well, if it fell on a day and an hour when the school said it was open?

Thomas Marcelle:

Yes, Your Honor, under this policy.

Of course the school could write the policy to limit it to athletic, just athletic events or just theatrical events but they couldn’t exclude religious groups or religious viewpoints on those subjects.

William H. Rehnquist:

Well but, I think you can say that the school, that the school couldn’t exclude religious viewpoints or religious groups and still not necessarily say that it had to be open for a full dress religious service.

Thomas Marcelle:

Mr. Chief Justice, that’s correct.

I think again in this case Milford has drafted the broadest possible policy.

It’s really when you say any social, civic or recreation use or other uses pertaining to the community you, I think, have created the broadest possible forum–

Anthony M. Kennedy:

It specifically allows meetings and entertainment events and other uses.

Thomas Marcelle:

–That’s correct.

And I think the phrase is other uses that pertain to the welfare of the community, Justice Kennedy.

Ruth Bader Ginsburg:

Might there not be a problem with the establishment clause, apart from the viewpoint versus content discrimination if there were say a church service to be conducted the same time the Boy Scouts are meeting?

Thomas Marcelle:

I don’t believe so, Justice Ginsburg, for this reason.

When you choose, when you choose, as Milford has in this case, to shut its school down at 3 o’clock and thereby open up a public forum inside your school, you can’t restrict religious viewpoints even if the viewpoint in the speech is exercise in a religious ceremony.

Ruth Bader Ginsburg:

But you are talking about a First Amendment free speech right.

That’s how you open this.

There is also an issue that hasn’t been aired in this case, and that is the issue that arose in Widmar and in Murgens, the distinction between, for establishment clause purposes, people of a certain sophistication versus younger people.

Thomas Marcelle:

Justice Ginsburg, I’ll give you two answers to your inquiry.

One, I think this is like Widmar.

For example, in Widmar would essentially be the cornerstone group which was the student group that sought access to the school was a religious group singing religious songs, reading the Bible and praying, and this Court didn’t find a constitutional problem in that case because it was–

Ruth Bader Ginsburg:

The age of the, the… that played some role in the Court’s decision, didn’t it?

That these were college students who had a degree of sophistication and could distinguish between just opening it up to everybody, and the school endorsing it?

Thomas Marcelle:

–That’s correct, Justice Ginsburg.

And in this case, in Widmar, the appropriate community was the students so you would look at the observer student, but in this case, Milford has ended school and has opened up a community forum for parents to initiate and parents to run these community groups.

Antonin Scalia:

What was at issue in Widmar?

Antonin Scalia:

What, what kind of activity?

Thomas Marcelle:

It was a… praying and reading the Bible and singing religious songs and teaching from the Bible.

Antonin Scalia:

In, in the school or to the whole school body, before the whole school body?

Thomas Marcelle:

Not before the whole school body, Your Honor.

Just to the participants who wanted to hear and chose to hear this message like this case.

The only children who attend the Good News Club are sent there by their parents.

Antonin Scalia:

And that was upheld?

Thomas Marcelle:

And that was upheld, Your Honor.

David H. Souter:

I’m sorry.

Isn’t the nub of the problem in this case that you’re not dealing with college students, you’re dealing with grade school kids, kids from, I think it was ages starting at six going up to 12.

You’re doing it… in this particular case, the meeting was being held immediately after the school and the meeting sounds to me as it was described as Sunday school.

They pray.

They sing sort of children’s religious songs, and they have a teaching lesson and I guess some discussion, but it sounds like Sunday school, and isn’t the problem in this case that you don’t have a sophisticated group of people of college age who know that the university is not proselytizing them or approving of their particular religious practice, whereas in this case you have a bunch of kids who just don’t make those kinds of distinctions, and isn’t that the nub of the establishment clause problem here, which didn’t exist in Widmar?

Thomas Marcelle:

If I may, Justice, be allowed to give you, kind of, two answers.

One, that’s not the case because if this meeting was conducted at 9 o’clock at night and was given just to adults, State law would prohibit from them meeting under those circumstances.

David H. Souter:

Well, that, that might be the case, and it might be the case that you would have a different case before us if those were your facts, but whether State law would prohibit it or not, my question is, don’t we have here at least a substantial, I won’t decide it from the bench, but don’t we have a substantial establishment clause issue, which we simply didn’t have in Widmar so that you can’t take Widmar as being direct authority for what was going on here?

Thomas Marcelle:

I would say the answer… and that would be in the second part of my answer.

David H. Souter:

Right.

Get to number two.

Thomas Marcelle:

–to your, to your question, is the parents are the ones who decide whether or not the children will attend.

Antonin Scalia:

He’s worried about the other children who are, who are supposedly hanging around the school after the bell rings, instead of skipping off the way my kids do.

Actually, and they are infected by seeing these other kids going into an activity which they think represents the approval of the State for these religious services.

I think that’s the point he’s making.

David H. Souter:

I would never spurn Justice Scalia’s help, but actually… actually, I think you understood my question.

Why don’t you answer it as modified by Justice Scalia.

Thomas Marcelle:

I guess I would go back to Justice O’Connor’s concurrence in Capitol Square where she said the endorsement tests and the establishment clause are concerned with the political community at large and not particular individuals or isolated observers.

Here the day ends and–

David H. Souter:

That’s, that’s, you know, that’s because that was the group to which Capitol Plaza was appealing, but here, the appeal is to kids, and in particular, to the kids who are going to this Sunday school kind of service.

Thomas Marcelle:

–I guess I would disagree with all respect, Justice Souter.

I think the appeal is to the parents.

Antonin Scalia:

Mr. Marcelle, was this the basis for the school’s refusal to allow the group, you can’t do it right after school?

Was that the–

Thomas Marcelle:

No.

That was not the basis.

Antonin Scalia:

–And was this point raised before the Second Circuit?

Was it part of the Second Circuit’s opinion?

Thomas Marcelle:

Absolutely not.

Antonin Scalia:

Was the point raised before the Second Circuit?

Thomas Marcelle:

If I could search my memory and I don’t believe, or if it was raised, it was raised tangentially, Your Honor.

It certainly wasn’t the thrust.

David H. Souter:

Well then, then do you feel that the decision that the judgment of the Second Circuit should be vacated and the case should be remanded for consideration of this issue?

Thomas Marcelle:

Well, I, I think what happens is for the purpose of–

David H. Souter:

What do you, what do you think should happen?

Thomas Marcelle:

–Excuse me.

I think this case should be reversed and remanded back to district court to grant the relief we requested.

David H. Souter:

And why, why should this issue not be considered in the Second Circuit?

Thomas Marcelle:

I believe that Milford school had the burden of proof.

Ruth Bader Ginsburg:

But you were the Plaintiff in the case, and you had the First Amendment theory, and that lost, and you appealed on that theory.

Thomas Marcelle:

Yes.

Ruth Bader Ginsburg:

Now, it would seem to me if the other issue was, was not aired, we should not decide it in the first instance.

Thomas Marcelle:

Justice Ginsburg, there was cross motions for summary judgment.

We moved for summary judgment and the school district moved for summary judgment, and to defeat our motion for summary judgment, they had the burden of proving a compelling State interest and that the censorship forum, from the forum was the least restrictive means to achieve that interest.

Antonin Scalia:

Mr. Marcelle, when the, when the State refuses somebody something to which he is entitled for the wrong reason, and the case is appealed up here, and we say that reason was wrong, do we normally, if the State comes in and says oh, we could have, we could have done it for another reason, you know, not because of his race.

We might have done it for some other reason, do we normally remand to give him a second bite?

Aren’t they stuck with the reason that they gave?

Thomas Marcelle:

Well, I think, they are stuck with the record as in any trial, on any appeal, you could raise new issues and new grounds and could have a new trial.

Antonin Scalia:

This school said we will not let you conduct this service, period.

Thomas Marcelle:

At any time.

Antonin Scalia:

At any time because we do not allow religious services in the school, and that’s the basis on which it was argued below, as I understand it.

Thomas Marcelle:

That’s correct.

William H. Rehnquist:

Did the Court of Appeals rely on the establishment clause in its decision?

Thomas Marcelle:

No, it did not, Mr. Chief Justice.

We were briefly, my recollection, questioned about it, but the Second Circuit did not rest its decision on that grounds.

Anthony M. Kennedy:

And in a trial court, the school district made no distinction in its summary judgment motions or in its answer based on the fact that this was immediately after school?

Thomas Marcelle:

I’m not sure–

Anthony M. Kennedy:

The school district said it could bar these, it could bar these meetings at any time of day?

Thomas Marcelle:

–That’s correct.

And it’s–

Anthony M. Kennedy:

And it made no, and it made no distinction between right after school or an hour after school or two hours after school?

Thomas Marcelle:

–That’s correct, Justice Kennedy and in fact on the joint appendix at G 4 and I believe it’s paragraph 13, it’s the superintendent’s affidavit where he is basically says that your speech is too religious to be using the forum.

Sandra Day O’Connor:

Mr. Marcelle, does State law require this school district to open its facilities after school to other groups?

Thomas Marcelle:

No, Justice O’Connor.

Sandra Day O’Connor:

This is a decision made by the particular school.

Thomas Marcelle:

Yes.

New York State education law grants the power to the local school boards.

Sandra Day O’Connor:

But does not require it.

Thomas Marcelle:

But does not require it.

Sandra Day O’Connor:

And is it clear under State law that the school could adopt whatever provisions it wants for its opening of the school?

It could choose to limit it to athletic purposes at certain hours and on certain days?

Thomas Marcelle:

Yes.

What State law sets a ceiling for what school districts can do, and they can go, the floor goes to not even opening the forum and they can go anywhere in between.

Here, Milford chose to, the maximum possible extent allowed under, under–

Sandra Day O’Connor:

So it would be entirely open, whatever this Court chose to do for the school to revamp its policy for hours and days and purposes?

Thomas Marcelle:

–Absolutely, Justice O’Connor.

New York grants them broad discretion and the school board has that ability to exercise that discretion.

John Paul Stevens:

May I ask, what is the, is there a State statutory ceiling you say?

In other words, is there a State limit on how much religious activity they could permit?

Thomas Marcelle:

Yes, Justice Stevens.

It’s State–

John Paul Stevens:

Are you challenging both the school board’s regulation and the State statute?

Thomas Marcelle:

–They gave both reasons for denial, and–

John Paul Stevens:

And I’m asking, are you challenging–

Thomas Marcelle:

–I’m sorry, yes, Justice Stevens.

We are challenging both.

John Paul Stevens:

–So you are contending the statute is unconstitutional?

Thomas Marcelle:

The statute to the extent… Justice Stevens, actually it requires a little explanation under New York law.

It really isn’t that, the history in New York law is a little more entangled.

The State legislature had opened up it for these broad purposes if the school board so chose.

In 1978, there was a mid level appellate court in the State that was decided prior to Murgens that said because the State legislature didn’t specifically include religious purposes in the statute, the court interpreted as it meant to exclude religious purposes, although the State doesn’t, the statute doesn’t say that, that has become part of the judicial interpretation of the statute, so I don’t want to mislead you and it’s contained in the statute, Justice Stevens.

David H. Souter:

Well, I want to know how that explanation that you just gave us fits with, with what you were telling Justice O’Connor a moment ago.

If you win this case, and the school board says we want to revamp our regulations, and our regulations are going to be that although religious purposes do not exclude a group from, from use of the facilities, religious worship does, and we are going to draw the line there, or they might say we are going to draw the line against any use that could be regarded reasonably as an establishment clause violation when young kids are involved.

Would you take the position then that because you think the, the New York statute is unconstitutional that the school district could not draw that restriction or either of those restrictions that I have just described, and which if the statute is unconstitutional does it render the school district in fact, in this respect, does it render the school district incapable of drawing any distinction whatever that has any reference to religion?

Thomas Marcelle:

I believe Widmar answers that question, Justice Souter.

David H. Souter:

I would like Marcelle to answer that question.

What position, what’s your argument?

Thomas Marcelle:

My argument is religious worship is inherently a religious viewpoint.

In other words, when I say hail Mary full of grace and say amen, that’s my internal attitude.

If I say ha ha, I’m allowed in the forum, but if I say amen, I’m excluded and it seems to me what makes one worship and the other not worship is my internal attitude.

David H. Souter:

No.

But… is, you are saying that the State cannot exclude what’s going on… that the district could not exclude what’s going on here.

But is it because the statute is itself unconstitutional in drawing a religious distinction?

Thomas Marcelle:

No.

I believe it’s unconstitutional under the free speech clause.

That is, the State cannot exclude religious viewpoints from a forum that otherwise speaks on the subject matter.

For example, in this case–

David H. Souter:

Okay.

No.

I don’t, I don’t mean to cut you off, but I just wonder, you answered Justice O’Connor’s question, as I recall, by saying yes, the State could go back and revamp the policy and draw it more narrowly, and I understood you to say, or to imply that if it wanted to draw a policy that says no religious worship involving young kids or something like that, that, that would be open to it and I want to know whether your position on the statute leads you to say no, the school district would not be, even without State, would be without State authority under State law even to do that.

Thomas Marcelle:

–My position is that the First Amendment prohibits drawing that distinction, if that, whatever you called the worship fits within the otherwise religious neutral boundaries of the forum.

So, for example–

David H. Souter:

But is that because the State statute is simply inoperative to give the school districts the authority to redraw a policy more narrowly?

Thomas Marcelle:

–No.

I think the limitation on the school board is the First Amendment to the United States Constitution.

David H. Souter:

Okay.

Ruth Bader Ginsburg:

If there were to be an action, let’s say you prevailed in this action, there would be an action by parents of a 6 year old attending this school, that would challenge the allowance of this group on establishment clause grounds, that would in no way be foreclosed by this, this decision if the issue is there, but not decided by this case, is that right?

Thomas Marcelle:

I guess that would be correct, Justice Ginsburg.

I mean, I guess cases can’t stand for propositions which aren’t decided in them, and I think that’s–

Ruth Bader Ginsburg:

So the whole question one way or another of whether elementary school students are differently situated than high school students or college students would be open in any case?

Thomas Marcelle:

–Depending how the court wrote the opinion, yes.

Yes.

Yes, Your Honor.

Antonin Scalia:

Well, I mean the establishment clause has been presented in this case at least as a defense, that is to say, it has been alleged that one of the reasons that the State could do this is because of the establishment clause problems that would arise were they to do it, and it is, it is quite possibly for this Court’s opinion to address that establishment clause argument as well, isn’t it?

Thomas Marcelle:

I would assume it’s quite possible, Your Honor.

Ruth Bader Ginsburg:

I’m confused.

I thought you said it wasn’t raised.

Thomas Marcelle:

I’m sorry, I said that, excuse me, Justice Ginsburg.

I think what I was trying to say in response to Justice Souter’s question was they hadn’t met their burden.

It’s different between, I think, not raising it and not meeting the burden of proof of showing a compelling stage.

David H. Souter:

But wasn’t there a position below, maybe, maybe I misunderstood what you were saying, but I thought their position below was that any use for a religious purpose, any, as you were putting it, any expression of a religious point of view on the subjects that might be discussed could be excluded and that was the reason for excluding this.

Is that so?

Thomas Marcelle:

That’s correct, Justice Souter.

David H. Souter:

And do you, do you believe that, that if we say no, that’s too broad a ground, that they would then be foreclosed from redrawing their policy on a narrower ground based upon avoidance of an establishment clause problem if they do allow this, would they be–

Thomas Marcelle:

I’m not sure.

David H. Souter:

–Would they be precluded?

In other words, they are saying okay, we can’t paint with a broad brush.

We are going to paint with a narrow brush.

We are going to say this would be a violation of the establishment clause to allow a Sunday school kind of worship for young school kids immediately after school, we won’t allow it.

Would that in your judgment be precluded by the judgment in this case?

Anthony M. Kennedy:

Assuming you know what we are going to say.

Thomas Marcelle:

I guess that’s–

Anthony M. Kennedy:

I take it, I take it based on your position it’s open to us to say that it’s a violation of the establishment clause for the State to scan and to review every single event, every single class in order to purge it of religious content; that that is itself is an establishment violation.

That’s open for us to say, so if we said, that would certainly foreclose the line of questioning that, the suggestions that Justice Souter is making about further lawsuits.

Thomas Marcelle:

–Absolutely.

And moreover, Justice Kennedy, I think there is also this problem.

This is a broad community forum, and parents, it would seem to me the establishment clause was crafted to defend the rights of the religious people to participate in broad community forums and to exclude Andrea Fournier from a forum because of her religion would seem to be the very value that the establishment clause was, was crafted to defend, so if she wears her daisy scout uniform, for example, she is okay to come in, but if she wears her Good News Club uniform, she is not.

And it, I think not only the free speech clause protects her right to meet under those circumstances, but not to be excluded from a broad community forum and the parents not to be excluded from the broad community forum also is protected by the establishment.

David H. Souter:

All right.

I want to make sure I understand your answer.

You are saying that if you win this case based upon the ground that the exclusion broadly of religious viewpoints is unconstitutional, is it your position that if they then redraw the policy more narrowly and say we are going to exclude Sunday school type of meetings held on the school grounds immediately after school, is it your position that they would be foreclosed by the judgment of this Court in this case from doing that?

Thomas Marcelle:

The way you state it, Justice Souter, absolutely.

Anthony M. Kennedy:

Well, not if we rely simply on, on, on the First Amendment speech clause.

That, that’s another option that we have.

We say it’s simply violative of the First Amendment speech clause.

William H. Rehnquist:

It’s almost impossible for counsel to say what the effect of an opinion is going to be.

Antonin Scalia:

Trust me, Mr. Marcelle.

William H. Rehnquist:

Also principles of res judicata involved that anything that was litigated or might have been litigated in a suit is barred.

Antonin Scalia:

Trust me, Mr. Marcelle, we can write this opinion so it does almost nothing.

Thomas Marcelle:

Mr. Chief Justice, may I reserve the balance of my time?

William H. Rehnquist:

Very well, Mr. Marcelle.

Mr. Miller, we’ll hear from you.

Frank W. Miller:

Mr. Chief Justice and may it please the Court, the issue before this Court today is whether a public school district may lawfully exclude a religious group from conducting adult led, adult sponsored and adult initiated prayer and worship services and religious instruction immediately at the end of the school day where these activities involved the youngest children.

Sandra Day O’Connor:

Well now, what difference does adult sponsored make?

I assume the Girl Scout meetings are adult sponsored.

What’s the purpose of emphasizing that?

Frank W. Miller:

The purpose of emphasizing that–

Sandra Day O’Connor:

All these things are adult sponsored.

Frank W. Miller:

–Well, Justice O’Connor, except for the fact that we have the Equal Access Act which we submit that if Petitioner’s position is accepted in this case, the Equal Access Act will become meaningless because then you will be able to have adult led and adult sponsored religious activities occurring in a school which the Equal Access Act would prohibit.

Sandra Day O’Connor:

What Equal Access Act are you talking about?

Frank W. Miller:

I’m talking about the Equal Access Act that was discussed by this Court in Murgens and–

Sandra Day O’Connor:

The New York law?

Frank W. Miller:

–I’m sorry?

Sandra Day O’Connor:

You are referring to some New York law?

Some Federal law?

Frank W. Miller:

Yes, Justice O’Connor, the Federal statute known as the Equal Access Act.

Sandra Day O’Connor:

Is that before us in this case?

Frank W. Miller:

No, Justice O’Connor.

Sandra Day O’Connor:

I didn’t think it was presented to us on that basis.

Frank W. Miller:

No, it is not.

It is that, it is that the Federal law would allow, the Equal Access Act would allow adult, would not allow adult led or adult sponsored religious worship and activity in a school under any circumstances.

Whereas, if it were student initiated and student led at the secondary level, that would be permissible under Federal law and those restrictions have been upheld by this court in Murgens.

William H. Rehnquist:

Right.

But what are the grades covered at the Milford Central School?

Frank W. Miller:

Mr. Chief Justice, it’s kindergarten through sixth grade, so it’s actually ages 5 to 12.

William H. Rehnquist:

Well, it would be unusual, wouldn’t it, for any meeting after school not to have an adult leader?

He wouldn’t have a bunch of fourth graders in there talking by themselves.

Frank W. Miller:

Oh, absolutely.

Oh absolutely.

Absolutely, Mr. Chief Justice.

I emphasize that point only because of the fact that under Federal law under the Equal Access Act, this activity wouldn’t be permitted.

John Paul Stevens:

May I just ask on the equal access, I don’t really have it in mind.

Does the Equal Access Act not require or does it prohibit the activity you are describing?

Frank W. Miller:

It would prohibit the activity.

John Paul Stevens:

It prohibits it.

Frank W. Miller:

At the elementary level, and it would prohibit the involvement of adult supervision.

Antonin Scalia:

Are you sure about that?

I, I thought it would simply not compel it.

It doesn’t cover, it doesn’t cover it except, you know, student led activity.

Frank W. Miller:

Justice Scalia, my understanding of the Act was that it specifically prohibited adult led and adult sponsored activities at the elementary level, which is the situation.

Stephen G. Breyer:

Wow.

Well, then it would raise the same problem as this raises?

Stephen G. Breyer:

So my question would be, we have a fairly… no prayer in school is a controversial policy, but it has one virtue.

The court’s opinion is, the virtue is it’s clear.

Frank W. Miller:

That’s right.

Stephen G. Breyer:

All right.

So the rule is as the courts interpreted it, that school activities cannot involve prayer.

Well, isn’t the corollary of that where there isn’t school activities, it can involve prayer, and it can involve religious activities, and here we are after school, so the same clear rule would say you can’t pray in school, but after school is different, and you can’t discriminate against religion after school.

Now, I put that because that’s, I’m putting it squarely.

Frank W. Miller:

Right.

Stephen G. Breyer:

I want to hear your answer.

Frank W. Miller:

Yes, sir.

Stephen G. Breyer:

And, and my, my thought is aimed at the clarity of such a rule that ordinary people can understand, in light of the basic principles underlying establishment on the one hand and free speech on the other.

Frank W. Miller:

Yes, Justice Breyer.

Justice Breyer, we contend that this is, and I believe the parties have stipulated that this is a limited open forum.

And what we have attempted to do is consistent with State law we have attempted to exclude the subject matter of religion.

Stephen G. Breyer:

Exactly.

And the question is, after school–

Frank W. Miller:

Correct.

Stephen G. Breyer:

–People can talk about any subject matter, but not religion.

That sounds to me as if you are discriminating in free speech terms against religion.

And now my question is, why isn’t that contrary to the Constitution?

It’s after school.

It’s not a school activity.

And it doesn’t help me to talk about open forums or not open forums or whatever.

I want, I want to know what, what the principle is, what the theory is?

Frank W. Miller:

Well, the theory is, Justice Breyer, that we have set limits to exclude on a reasonable basis certain activities from occurring in the school.

Just as we exclude partisan political activities.

We exclude commercial activities.

And we exclude various other activities, the school system has made a decision that it wanted to exclude this activity from its forum.

Now, consistent with a decision, for example, in Cornelius vs. NAACP, where the issue of partisan political speech was excluded from a limited open forum.

We have acted similarly in this circumstance.

Frank W. Miller:

Because of concern about some of these establishments.

William H. Rehnquist:

What, what do you do about the, our Lamb’s Chapel decision?

It seems to me that the Court of Appeals here paid very little attention to Lamb’s Chapel.

Frank W. Miller:

I’m, I’m well aware of that, Mr. Chief Justice.

But I think that in part, and I, I’m not certain why the Second Circuit wrote the majority opinion it did, except for the, I can offer the Court this, and that is that in footnote two of the majority opinion, this Court indicated very clearly that it was not addressing the issue of worship services and Sunday school.

David H. Souter:

Well that… yes, but as I understand it, as it has been represented to us, that wasn’t the basis for the school district’s exclusion here.

The basis, as I understand it, was what you just told Justice Breyer a moment ago, that the district had chosen to exclude religious discussion from those which were, were open.

And that’s, that’s a very different criterion from saying, we’re excluding the use of the facilities just for religious worship.

Which was it?

Frank W. Miller:

Well, Justice Souter, I think perhaps the actions of the school district have been somewhat mischaracterized.

I believe that there is a letter in the record from the superintendent that had indicated precisely what they were excluding, and the letter from the superintendent to the Reverend indicated that uses consistent with Lamb’s Chapel would be permitted, but that religious worship would be excluded under the description of this forum.

So it was not excluded because of a viewpoint.

It was excluded because the entire subject matter of religious worship was excluded from the forum.

Anthony M. Kennedy:

Where is that letter in the record?

Frank W. Miller:

Yes, sir.

Your Honor, please look at the joint appendix H 1 to H 2.

There is reference there to the Lamb’s Chapel decision of this Court indicating that the viewpoint, the viewpoint was… was not what was being excluded, rather it was the religious worship that was being excluded.

David H. Souter:

And was it religious worship which was the ground that you… you chose to stand on in the district court and in the argument before the Second Circuit?

Frank W. Miller:

Justice… Justice Souter, we advanced both.

For example, an examination of our answer would reveal that we raised the establishment clause as an affirmative defense.

But I believe it’s the next to the last page of the district court opinion, and I could find it if the Court wishes.

The district court, for example, concluded that because we had found that the limited open forum was properly created and properly limited, it did not need to reach our establishment clause arguments or the establishment clause issue.

Antonin Scalia:

On that, you think this letter is correct that hearing a Bible lesson and memorizing Scripture is the equivalent of religious worship?

Frank W. Miller:

Justice Scalia, yes, sir, I do.

Anthony M. Kennedy:

And have you memorized the Declaration of Independence or the preamble of the Constitution, that’s something other… what is that?

That’s not thinking?

That’s not training of any kind?

Frank W. Miller:

Justice Kennedy–

Anthony M. Kennedy:

That’s not, that’s not imparting a view on what our history means?

Frank W. Miller:

–Oh, of course it is.

Anthony M. Kennedy:

We, we don’t want you to know… be able to recite the First Amendment?

Frank W. Miller:

We don’t certainly contend that that was a full description, Justice Kennedy, of everything that was occurring.

Rather we have a full record that the district court and the court of appeals in both instances concluded that this was indeed religious worship.

Stephen G. Breyer:

Well, suppose it was.

Frank W. Miller:

Yes, sir.

Stephen G. Breyer:

And I’m just putting this to get your response.

It doesn’t necessarily reflect what I’m thinking.

But social events, it doesn’t say social discussion.

Civic events, recreational events.

Entertainment events.

I guess that includes chess club, dances.

Frank W. Miller:

Yes, Your Honor.

Stephen G. Breyer:

It includes all kinds of activity.

Frank W. Miller:

That’s correct.

Stephen G. Breyer:

So suppose you were to say any activity is fine, just one is not.

Religious activity is not.

Frank W. Miller:

No, sir.

Stephen G. Breyer:

After school.

Now, my question is given Lamb’s Chapel, why would that be constitutional?

Frank W. Miller:

Well, Justice Breyer, the premise of the question operates under the assumption that the only thing that we excluded was religious, were religious activities, I believe.

Stephen G. Breyer:

Well, that’s what seems to be what you’re saying.

What you excluded here, there is a separate section and it says the separate section, use for nonreligious purposes.

It says school premises shall not be used by any individual or organization for religious purposes.

Frank W. Miller:

Yes, sir.

Stephen G. Breyer:

So it seems to me that what you have on one side of the page is use it for anything, and on the other side of the page, there is an exception, religious purposes.

Now, my question, which has been throughout is, how do you square that with Lamb’s Chapel, i.e., since its after school, and isn’t a school activity, why isn’t it discrimination against religion under the First Amendment?

Frank W. Miller:

Your Honor, we have excluded the entire subject matter of religion as we–

Stephen G. Breyer:

Well, doesn’t that make it worse?

Every other subject matter is there.

Frank W. Miller:

–No, Your Honor, because that is not, that is, in fact, not the case as this particular forum was created.

Frank W. Miller:

This particular forum also excluded partisan political speech and various other activities that I believe we enumerated in our brief and I think are enumerated elsewhere in the record, particularly the deposition of the school superintendent identifies a number of those.

William H. Rehnquist:

But, but it didn’t exclude discussions of morality… the Boy Scouts, the Girl Scouts teach that.

Frank W. Miller:

Yes, sir.

William H. Rehnquist:

What it really excluded was a discussion of morality that had a religious perspective.

Frank W. Miller:

Well, Your Honor, that… the facts in the case really don’t spell that out.

And in fact, there is no development of the record in terms of what precisely the Boy Scouts did, other than recite the Boy Scout motto.

In fact, the record doesn’t reflect that they actually held their typical club meetings on school premises.

What they actually held on school premises were leadership meetings and not actual Cub Scout–

William H. Rehnquist:

Well, the very oath of the Boy Scouts is moral.

Frank W. Miller:

–Yes, Your Honor.

And our position has been that that’s essentially an incidental mention of those issues.

It is different from or distinct from religious worship.

William H. Rehnquist:

And so someone who spoke of, wanted to teach about how to be a good citizen from a particularly, especially secular point of view could not have done so under your program?

Frank W. Miller:

Your Honor, they could have.

I believe that–

William H. Rehnquist:

They could have done it.

Frank W. Miller:

–Yes, sir.

William H. Rehnquist:

But someone who wanted to speak about exactly the same subject from a religious point of view could not have?

Frank W. Miller:

I don’t… I don’t agree with the Chief Justice’s statement of the question.

Your Honor, we would have allowed them to express their viewpoint on a secular subject, I believe consistent with Lamb’s Chapel.

We would not have, however, permitted religious worship services, which is essentially what this was.

William H. Rehnquist:

You say this is essentially a religious worship service.

Now, I think people might quarrel with that.

You can have, I think one of my colleagues here described it as more like Sunday school, and I think that’s probably an accurate description, but it certainly isn’t religious worship in the sense that most people think of it.

Frank W. Miller:

Well, except for the fact, Your Honor… Your Honor that the Sunday school is generally the way that religious worship is presented to children of this, of this age group.

They are typically not required to attend the full service and so forth.

They typically attend a Sunday school type service.

Antonin Scalia:

Another way to put it would be that children of that age don’t engage in religious worship.

They go to Sunday school.

Frank W. Miller:

Well, Justice Scalia, they go–

Antonin Scalia:

I mean, just because they go, you are going to suddenly convert Sunday school into a Mass?

Frank W. Miller:

–No.

Justice Scalia, except for the fact that what they do is that they, they engage in an activity that’s age appropriate, and for those children–

Antonin Scalia:

That’s right.

David H. Souter:

Don’t they pray–

Antonin Scalia:

–Religious worship is not part of it.

David H. Souter:

Don’t they pray?

Frank W. Miller:

–Yes, sir, they do.

Ruth Bader Ginsburg:

May I ask to you clarify now something that Mr. Marcelle addressed as well.

You have said that you raised the establishment clause as an affirmative defense.

Frank W. Miller:

Yes, Your Honor.

Ruth Bader Ginsburg:

And that the district court said I’m not going to deal with it because I decide the case in your favor on another ground.

Frank W. Miller:

Correct.

Ruth Bader Ginsburg:

So it was raised, you raised it, but it wasn’t decided.

Frank W. Miller:

That’s correct.

Ruth Bader Ginsburg:

It seems to me that that’s got to remain open.

Frank W. Miller:

Yes, Your Honor, I believe that it does.

I believe it’s very much involved in this case.

Antonin Scalia:

Your position is that saying a prayer is religious worship and I assume then that any group which sought to meet on your school’s property which opened its meeting with a prayer would be excluded, and you think that’s in accord with Lamb’s Chapel?

Frank W. Miller:

Religious worship would be excluded, Justice Scalia.

Antonin Scalia:

And you said in response to Justice Souter that saying a prayer is religious worship, right?

Frank W. Miller:

Justice Scalia–

Antonin Scalia:

Right?

So no group admitted to this school program can say a prayer to open its meeting?

Frank W. Miller:

–I wouldn’t necessarily say that, Justice Scalia.

Antonin Scalia:

You just did say it.

Frank W. Miller:

Well, I… the point I’m getting across is that the activities of the Good News Club were more than merely reciting one prayer.

There was much more involved in that which is fully developed in the record, and those activities were much more religious and much more in the nature of a religious worship service.

Antonin Scalia:

They were more religious, but they were not necessarily the same thing as a church religion… as a church worship service, teaching the Scripture, teaching what the Scripture has to say about morality.

I mean, I think it’s a great distortion to call that a worship service.

Frank W. Miller:

Justice Scalia–

Antonin Scalia:

Even if you throw in a prayer or two.

Frank W. Miller:

–Justice Scalia, for children of this age group, that is the religious worship service that they would typically engage in.

Stephen G. Breyer:

Well, if that’s so–

David H. Souter:

–And that’s what you want to litigate, if on the broad ground you lose, you say we have raised that, and we should be allowed to litigate that go back to district court, is that it?

Frank W. Miller:

I’m hoping we don’t lose this case, Justice Souter.

David H. Souter:

I recognize that, but you’re saying, whether you agree with Justice Scalia or not, you’re saying we want to litigate that in the district court and–

Frank W. Miller:

I believe that we’ve preserved it and fully developed the record with respect–

William H. Rehnquist:

–Well, you did litigate it, didn’t you?

Frank W. Miller:

–Except for the fact, Mr. Chief Justice, that it was not ruled on specifically.

The district court said because we’ve concluded that your limited open forum was constitutional under Second Circuit precedent, we didn’t need to reach the establishment clause argument.

It was raised.

It was not, however, ruled on previously by the district court.

Stephen G. Breyer:

Is that the right way, then, to deal with what I would see as the difficult issue in this case, the difficult issue being suppose it’s a total prayer service?

Frank W. Miller:

Yes, sir.

Stephen G. Breyer:

Imagine that it is.

Frank W. Miller:

Yes, sir.

Stephen G. Breyer:

Now, is the way to get at that problem, if assuming there is a problem, that either a total prayer service would be unlawful, either you have… either it would violate the establishment clause or it wouldn’t.

Frank W. Miller:

Correct.

Stephen G. Breyer:

If it doesn’t violate the establishment clause, you lose this case a fortiori.

If it does violate the establishment clause, then the way to get at it is through litigating the establishment clause issue.

I’m trying to figure out.

That’s been the point of my question.

I’m trying to figure out how to do this on the assumption that this is pure prayer, which I know it isn’t, because the other alternative you could argue whether it is or isn’t, but assume it was, how do we get at that issue?

Frank W. Miller:

Well, several ways.

Number one, I think that even if it’s not a… technically an establishment clause violation, I think the school district had a reasonable basis to conclude that it might potentially be disruptive, it might potentially be divisive of the community to allow this type of utilization of the school building, and out of concern that perhaps religions which did not predominate in the area might be unrepresented and unable to use the school facility for similar purposes.

Antonin Scalia:

This is divisive in the community?

What would the community get upset about?

I don’t understand.

Frank W. Miller:

Well, Justice Scalia–

Antonin Scalia:

You would let all religious groups do this, right?

Frank W. Miller:

–Presumably, if you ordered it.

Antonin Scalia:

Religious groups that didn’t want to do it would get upset that other religious groups did want to do it?

Frank W. Miller:

Well, actually, Your Honor–

Antonin Scalia:

You must have a very divisive community down there.

I’m glad I don’t live in New York anymore.

Frank W. Miller:

–Actually it isn’t terribly divisive, Justice Scalia.

What we are concerned about is, is that there may be religious groups that do not have a substantial representation in this small town community, and that the majority religion, such as Reverend Fournier represented would be able to run a Good News Club, but the other groups that didn’t have the numbers or the personnel couldn’t run a similar club, and that would show a favoritism to this particular club.

William H. Rehnquist:

Why would it be a favoritism?

I mean, presumably if they met the standards for, if you have to have a certain number of people come to the meeting, any religious group that met that standard would have been granted the same right, wouldn’t they?

Frank W. Miller:

Yes, sir.

But it’s–

William H. Rehnquist:

Well, then what you’re saying basically, it’s kind of a heckler’s veto, that if people don’t like what the school is doing and are unhappy about it, that is a reason for excluding religion.

Frank W. Miller:

–I don’t believe that to be the only basis upon which we’ve determined that it is appropriate to exclude this.

We have also relied, to some extent, upon the mandate of State law that the school is bound to follow, and may I point out, please, that in the complaint there is no challenge to the constitutionality of section 414 of the education law.

That relief was not asked for at the district court, it was not asked for at the court of appeals, and it is not, in my judgment, at least from what I read in the complaint, it is not before this Court.

John Paul Stevens:

No, but are you contending that the State statute required this policy?

Frank W. Miller:

Justice Stevens, I believe that that’s essentially what the State statute mandated.

The State statute, education… New York education law 414 prohibited use of a school building for religious purposes.

Sandra Day O’Connor:

Well, but you don’t say that the school couldn’t adopt some different policy and say we’re not going to allow any use of our buildings at all?

Frank W. Miller:

That is correct, Justice O’Connor.

Sandra Day O’Connor:

The State law does not prohibit that?

Frank W. Miller:

That is correct.

Sandra Day O’Connor:

And the school could say, we’re only going to allow after school use for athletic purposes.

Frank W. Miller:

Correct.

Sandra Day O’Connor:

Or we’re only going to allow it after 6 p.m..

Frank W. Miller:

Correct.

Sandra Day O’Connor:

Yeah.

It only sets a ceiling, whatever that State law is.

Frank W. Miller:

That is correct, except one of the things that they do not permit, along with other prohibitions, such as a political… partisan political activities, commercial activities, and so on.

Frank W. Miller:

One of the other excluded areas is a religious activity.

Antonin Scalia:

Well, Mr. Miller, you can’t have it both ways.

If you say that the State law requires this–

Frank W. Miller:

Yes, sir.

Antonin Scalia:

–then certainly the constitutionality of the State law is at issue in this case.

There is no difference whatever between saying that what the State law requires is unconstitutional and saying that the State statute is unconstitutional.

That’s one and the same.

You can’t have it both ways.

If you say the State statute requires this, we are passing upon the constitutionality of the State statute, isn’t that right?

Frank W. Miller:

Yes, sir.

Just as you were in Lamb’s Chapel, but the same statute was before the court in Lamb’s Chapel, and–

Antonin Scalia:

By the way, the Federal Equal Access Act does not prohibit what was done here.

It does not contain any prohibitions.

It just says that the requirements which this Act imposes–

Frank W. Miller:

–Yes.

Antonin Scalia:

–are not imposed upon elementary schools–

Frank W. Miller:

At the elementary level.

Antonin Scalia:

–That’s right.

Frank W. Miller:

My understanding is it was a very vigorous debate about whether–

Antonin Scalia:

It doesn’t prohibit doing it at the elementary level.

It just says Federal law does not require you to do it at the elementary level.

Frank W. Miller:

–That is correct.

That is correct.

The… we contend that the establishment clause argument is very much involved in this case.

We did raise that as an affirmative defense in our answer, and we contend that if this particular use is permitted, we will have Sunday school on a Tuesday in a public school occurring at 3 o’clock immediately upon the end of the official school day.

Sandra Day O’Connor:

Well, now, just a minute.

I thought we just went over this.

There is nothing in the world that prohibits the school from saying we’re not going to have any activity before 6 p.m. or 3:30 or 4:00 or 5:00, whatever it is.

Frank W. Miller:

Correct.

Sandra Day O’Connor:

You told me the school can do that.

Frank W. Miller:

The school can do that.

Sandra Day O’Connor:

So why would you complain about 3 o’clock?

That must be something the school itself set up.

Frank W. Miller:

That is correct, Justice O’Connor, it is something that the school set up and allows, but they didn’t specify specific times, and when they examined this particular circumstance, they determined that it was religious worship and chose not to exclude it… or, excuse me, chose to exclude it.

Anthony M. Kennedy:

But–

Sandra Day O’Connor:

–But that’s all that’s before us is the religious worship.

The school obviously can set the hours and the days and the opportunities for all these groups.

Frank W. Miller:

That is–

Anthony M. Kennedy:

And your position is they can’t do it at any time of day, and that’s the way the case has been presented to us here.

Frank W. Miller:

–That is correct.

That is correct.

Antonin Scalia:

And the school, in fact, never complained about the time, none of this correspondence said the problem is you’re doing it right after school and these other kids will think that… right?

That was never in any of this stuff?

Frank W. Miller:

That is correct, Justice Scalia, the original denial was based on the fact that it was religious worship, not based upon the specific time of day, that is correct.

Anthony M. Kennedy:

And you defend that position?

Frank W. Miller:

Yes, sir, I do.

I believe we have the right to limit the forum to certain activities that the school believes have a reasonable basis consistent with the mission of the school system, and under the circumstances, as they have excluded other activities, such as political activities and commercial activities and similar activities, they are permitted to exclude these activities as well.

Stephen G. Breyer:

Now, why would it violate the establishment clause?

I mean, let’s take an extreme case, a local church, which doesn’t have a building, says, we would like to use the school for worship services two or three times a week at 4:00 in the afternoon to 6:00, all right?

So they do it.

And the school district says, no, this is a school, it’s not a church.

Frank W. Miller:

Correct.

Stephen G. Breyer:

Even after school.

Now why, I want to understand why… it may well.

Why does it violate the establishment clause, in your view?

After all, you could turn it into a gymnasium.

That’s not the… this is not a discrimination point.

This is an establishment point.

Frank W. Miller:

Correct.

Stephen G. Breyer:

Why?

Frank W. Miller:

Because under those circumstances that you just posit, I believe that the school is then lending support to a particular religious exercise or a particular religion.

Under the circumstances of this particular case, our case, we have an increase in active attendance at the meetings, we have the school being utilized in effect as a church.

And the same activity was conducted only months earlier at the church.

And under the circumstances, we submit, to permit the utilization for a church service, for a worship service, would involve the school in endorsing and supporting the that particular religion.

Antonin Scalia:

But the state provides, for example, crossing guards on Sundays at church services, and that is not thought… to facilitate people going to the church service, there’s no other reason for it.

So long as it provides crossing guards wherever else there is need for crossing guards, this is not considered to be an establishment of religion.

Frank W. Miller:

That’s correct, Justice Scalia.

Antonin Scalia:

So why if public facilities… and I don’t… I know many schools that do it.

If they’re willing to let their facilities be used for any public purpose–

Frank W. Miller:

Uh huh.

Antonin Scalia:

–why must they exclude a religious purpose so long as they’re doing it evenhandedly, all religions, all other purposes, just like crossing guards?

Frank W. Miller:

The example of the crossing guards you gave, I presume, is on a public street.

That would be an open forum where restrictions and limitations would be very difficult to justify.

In the case of a limited open forum, such as the school district where you’ve previously… this Court has previously indicated we have to have special sensitivity to the age and so forth of the children, we believe that it’s appropriate to make those judgments to exclude from the forum those activities that the school officials may believe are not inconsistent with the mission.

Antonin Scalia:

On Sundays?

On Sundays and after the kids are gone?

The building’s just lying there.

Actually the community can make money, it rents it out to any group that wants it.

The church needs it.

Frank W. Miller:

Well, they wouldn’t… if they were doing it for a for profit purpose under New York law, that wouldn’t be permissible.

Antonin Scalia:

Oh, you can violate the establishment clause for money?

Frank W. Miller:

Well, no, no, it wouldn’t be a permissible use was my point.

It would not be permitted under the school use policy or under New York education law 414.

It’s simply not permitted.

Anthony M. Kennedy:

To prohibit the use of public facilities for religious purposes shows the State is neutral as to religion, is that your point?

Frank W. Miller:

Justice Kennedy, I believe that we are required to be neutral and permit the schoolhouse to be used as a house of worship would violate, I believe, the principle of neutrality.

David H. Souter:

Why would it do so if, unlike this case, there’s no particular involvement of schoolchildren involved, and the district allows the, let’s say the auditorium to be used for a meeting of the Elks, for a meeting of the Veterans of Foreign Wars, and the Baptists have had their church burned, and they want to use it.

Why would… what would the theory be that would explain why it would be a violation of the establishment clause to let the church group use it on the same terms as the VFW and other secular organizations?

Frank W. Miller:

Is Justice Souter’s question in reference to this specific record or is this a hypothetical?

David H. Souter:

No, no, I’m going back I think to Justice Breyer’s question, and I understood you to answer his question in such a way that would say, yes, it would, in my example, it would be a violation to let the church group use it at the same… on the same terms as the VFW, and I don’t understand what your reasoning is.

David H. Souter:

What’s the establishment clause theory that leads you to say that?

Frank W. Miller:

Because you would be permitting then a schoolhouse to be used as a house of worship.

In the case of… in our particular case, at 3 o’clock there are lots of other educational activities going on.

David H. Souter:

Well, if that was the case, in… the facts in Widmar, then, would have been an establishment clause violation because in Widmar you had a state university property that was being used for purposes of worship, so that would have violated the establishment clause.

Frank W. Miller:

Well, Justice Souter, I believe that Widmar is a totally different case.

Number one, it’s an open forum as opposed to a limited open forum.

David H. Souter:

But you’re talking about the First Amendment, and now we’re talking about the establishment clause.

I take it, then, that given your answer to my question and Justice Breyer’s, you would say that the student worship service in Widmar on university property was a violation of the establishment clause.

Frank W. Miller:

I would have to take the position that with respect to that forum which had been open for all purposes–

David H. Souter:

We’re not talking about forum analysis.

We’re talking about establishment clause analysis.

Frank W. Miller:

–Uh huh.

Yes, sir, I understand.

David H. Souter:

In other words, I’m going from the speech clause to the establishment clause.

Was the Widmar worship service on public property a violation of the establishment clause?

Frank W. Miller:

This Court apparently held it wasn’t, although you looked at it as a free speech case, so presumably–

David H. Souter:

Yes.

Frank W. Miller:

–in that particular matter you allowed it.

In this circumstance–

Ruth Bader Ginsburg:

In this particular district, this school district, we’re dealing with elementary grades?

Frank W. Miller:

–Correct.

Ruth Bader Ginsburg:

Is there any practice with respect to high school or public colleges in that area?

Do they have student groups that can meet for religious purposes as well as all others?

Frank W. Miller:

Justice Ginsburg, that is not reflected in the record, and I’m not certain of the answer to that.

I believe, however, that the record reflects that there were no other religious uses that went on at this particular school, but the record is not developed on that.

Antonin Scalia:

Does the record show that there are a lot of other children who were hanging around the school while this service is conducting… conducted?

Is that in the record?

Frank W. Miller:

It is not fully developed, Justice Scalia, but I believe there is some evidence of that, yes, sir.

William H. Rehnquist:

Thank you, Mr. Miller.

Mr. Marcelle, you have five minutes remaining.

Thomas Marcelle:

If the Court… if it would please the Court, I have two quick points to make on rebuttal.

First, I believe there is a slight misstatement of the record.

At the cert petition, appendix H, page 6, it describes Milford School as a housing… building of both elementary, junior high, and high school.

The school building contains grades K-12, not just elementary school.

Second, with respect to the Equal Access Act, I believe Justice Scalia is right, it is only a mandate that Congress passed it.

If a high school did certain things, they would have to allow certain other high school groups.

There is nothing in the statute that makes it a prohibition to it, even in the absence of the law, to allow other groups.

Stephen G. Breyer:

Can I ask as long as… I would like you to–

William H. Rehnquist:

–This is on rebuttal.

Stephen G. Breyer:

I thought he was finished.

Do you have something else?

Thomas Marcelle:

No, I’m finished, Justice.

Stephen G. Breyer:

I thought he was.

If you have an extra minute, I’d like just to get your view on what I’m finding is the most difficult part of this, which we may not reach.

To take the opponent’s point on the establishment clause, suppose the city hall says every Sunday we can use the city hall as a church, we’ll let church groups use it.

So every Sunday the city hall becomes a church.

Does that violate the establishment clause?

Thomas Marcelle:

Not if it has a broad forum.

It would violate the statute–

Stephen G. Breyer:

No, what they’ll say is any group can use it.

Now, what happens is that every Sunday the city hall becomes a church and all the community goes there and gathers and prays.

Does that violate the establishment clause?

Thomas Marcelle:

–I don’t believe so, Justice Breyer.

I believe as long as the forum is open, the… and the State is neutral, that a reasonable observer would be aware of the policy and the history and the context of the situation and wouldn’t view that the State was endorsing the religious ceremony, but, rather, the adherents who chose to avail themselves of the forum, the endorsement belongs really to the people who attend and not be accredited to the State as long as the State didn’t really encourage or promote or recognize the–

John Paul Stevens:

May I ask you a factual question?

Does the record tell us how big the group was of the children involved in this club?

Thomas Marcelle:

–How many, Justice Stevens?

John Paul Stevens:

Yes.

Thomas Marcelle:

Initially, at the time of making the application, there were 20, and we had opportunity to use the school for a year and a half, and at the conclusion of that, at the time we made our motion for summary judgment, I believe, it was the same number.

John Paul Stevens:

Thank you.

Antonin Scalia:

You used it for a year and a half.

You actually did use it before the prohibition was issued or what?

Thomas Marcelle:

The district court… yes, Justice Scalia, the district court issued an injunction, and we used the school facilities for a year and a half.

Antonin Scalia:

But you didn’t use it?

At what time did you use it?

Thomas Marcelle:

At 3 o’clock, the high school resource room.

Antonin Scalia:

At 3 o’clock.

And was there any evidence about whether other grammar school students were still milling about when you were using it, looking longingly at the classroom where this was going on?

Thomas Marcelle:

No, Justice Scalia.

In fact–

Antonin Scalia:

Go ahead.

Thomas Marcelle:

–In fact, in the district court’s opinion, and for the preliminary injunction, it says such a case would be unlikely.

Anthony M. Kennedy:

You say this was the high school room?

Thomas Marcelle:

Yes, a high school resource room, Justice Kennedy.

Anthony M. Kennedy:

Is the high school and the elementary school one facility?

Thomas Marcelle:

That’s correct, Justice Kennedy.

William H. Rehnquist:

Thank you, Mr. Marcelle.

The case is submitted.