The Supreme Court's recent decision in Good News Club v. Milford Central School continued a two-decade trend of cases addressing the merger of two First Amendment freedoms: freedom of speech and freedom of religion.' In Good News, the Court focused on a New York school district's refusal to let a private Christian organization hold after-school Bible classes in a public school cafeteria for elementary school children. Although the school district allowed other community groups to use its facilities after hours, its policy excluded religious usage. Thus, it denied use of its facilities to the Good News Club because the club's meetings were "the equivalent of religious worship. "2
By a 6-3 majority, the Court ruled in favor of the Good News Club. Since the school created a limited public forum by allowing access to its facilities by community groups, it had to open its facilities to all groups regardless of their viewpoint or message. While the school is not required to allow every type of speech in the forum, as the Court noted, its power to limit speech is constrained by the constitutional requirements of the Free Speech Clause, which prohibit discrimination against a speaker because of the speaker's specific viewpoint. Writing for the Court, Justice Clarence Thomas argued that
what matters for purposes of the Free Speech Clause is that we see no logical difference in kind between the invocation of Christianity by the Club and the invocation of teamwork, loyalty, or patriotism by other associations to provide a foundation for their lessons ... speech discussing otherwise permissible subjects cannot be excluded from a limited public forum on the ground that the subject is discussed from a religious viewpoint)
In prohibiting access to the Good News Club, the school district raised an Establishment Clause defense, and argued that to allow the club access would be an endorsement of religion by the school itself. Again, the Court disagreed. Justice Thomas noted that the Court has "never extended our Establishment Clause jurisprudence to foreclose private religious conduct during nonschool hours merely because it takes place on school premises where elementary school children may be present."4 Primarily, the Court concluded that it was unlikely, given the facts of the case, that elementary students and their parents would perceive the school as endorsing religion by allowing the after hours use of its facilities to religious groups, and neither parents nor students would be coerced into attending the meetings.
The Good News case fits into a larger trend of using public forum principles under the First Amendment to drive religious speech further into the public domain, mainly by targeting public property as a site for religious expressions As Gilbert Holmes notes, linking free speech doctrine to "student-initiated religious expression" in the public schools is an attempt to circumvent more restrictive Supreme Court precedents prohibiting school-sponsored prayer and Bible reading. Indeed, litigating such disputes is a 11 stratagem for returning religion to public school."6 Importantly, the Court's decisions also indicate that public high schools and public universities are likewise bound to public forum jurisprudence when confronted with religiously motivated speech.7 Public schools are not the only types of public property affected either, as the Court's decisions also concern religious speech in other types of public forums, such as city plazas and squares, state fairs, and publicly administered airports and other terminals for travel.8 Thus, the trend of litigating religious speech and expression in public places extends far beyond public schools to encompass a broad diversity of public property and space. One result, as Martha McCarthy points out, is that "by framing issues to focus on the speech aspect of devotional activities ... the Court has concluded the private (personal) religious and …