WASHINGTON, Feb. 28
The Supreme Court appeared generally sympathetic
today to an evangelical group's argument that it had a constitutional right
to offer Bible study and prayer as an after-school activity for young
children on the same basis as any other activity held on the premises of an
upstate New York public school.

The federal appeals court in Manhattan last year upheld the Milford Central
School's decision to exclude that group, the Good News Club, ruling that
the exclusion was based not on its religious viewpoint but on a
permissible decision not to have "religious instruction and prayer" as an after-school
activity.

But the policy amounted to censorship in a broad community forum, Thomas
Marcelle, the lawyer for the Good News Club, told the justices today.
"We're not asking for unique access, just equal access," he said.

The case, Good News Club v. Milford Central School, No. 99-2036, has drawn
wide attention because of its implications not only for religion in the
public schools but also for a range of questions about the extent to which
public institutions can, or must, open their doors to religious
organizations on an equal basis with all others.

Much about the case was unclear today. There was considerable confusion,
for instance, over how to characterize the activities of the Good News
Club, part of a nationwide movement that seeks to "evangelize boys and
girls with the Gospel of the Lord Jesus Christ," according to a brief filed
by its parent organization, the Child Evangelism Fellowship. The argument
appeared to underscore the difficulty of drawing a firm line between
religious worship and activities that are simply suffused with a religious
point of view.

Justice David H. Souter was the most openly skeptical of the Bible club's
arguments and asked the most probing questions about what occurred in a
group of two dozen 6-to- 12-year-olds who sing religious songs and learn
Bible lessons.

"It sounds like Sunday school," Justice Souter told Mr. Marcelle. He said
that while the Supreme Court's precedents gave college students the right
to conduct worship services at public universities, those precedents did
not necessarily authorize the same activity for young children.
While the Supreme Court has allowed various religious activities on public
school property outside school hours, it has not addressed the role of
religion as an after-school activity for young children.

"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," Justice Souter
asked, "whereas in this case you have a bunch of kids who just don't make
those kinds of distinctions?"

No children attend the meetings without their parents' permission, Mr.
Marcelle said. He suggested that it made little difference for free-speech
purposes whether the activities were described as worship or simply
discussions with a religious viewpoint.

"My argument is religious worship is inherently a religious viewpoint,"
Mr. Marcelle said. "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."

Justice Ruth Bader Ginsburg also suggested that the court's precedents on
equal access for religious speech did not apply to activities for young
children. But other justices, particularly Justice Antonin Scalia, came to
Mr. Marcelle's defense and had tough questions for the school district's
lawyer, Frank W. Miller.

Defending the club's exclusion, Mr. Miller said 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."

"This is divisive in the community?" Justice Scalia exclaimed. "I don't
understand. What would the community get upset about? I don't understand."
He continued: "You must have a very divisive community down there. I'm
glad. I don't live in New York anymore."

Justice Sandra Day O'Connor, who occupies a position in the middle of the
court on religious questions and whose vote may well determine the outcome
of this case, appeared unimpressed by the school district's argument. When
Mr. Miller said 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," Justice O'Connor
objected.

"Well, now, just a minute," she said. "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 or 5, whatever it is." Justice O'Connor
continued, "So why would you complain about 3 o'clock?"

One question that ran throughout the argument was what role should be
played in the court's eventual analysis by the Constitution's
establishment clause, which prohibits the official "establishment" of religions and
which the school district has raised as a defense against the Good News Club's
arguments. In upholding the exclusion policy on free- speech grounds, the
United States Court of Appeals for the Second Circuit did not address the
establishment clause question.
Mr. Miller said today that to permit the club to meet in the school "would
involve the school in endorsing and supporting that particular religion,"
thus violating the establishment clause.

But Justice Scalia objected that "the state provides, for example,
crossing guards on Sundays at church services" without violating the establishment
clause. "Why must they exclude a religious purpose so long as they're
doing it evenhandedly?" he asked.

Mr. Miller replied that there was a difference between providing crossing
guards "on a public street" and excluding from the limited forum of a
public school "those activities that the school officials may believe are
not consistent with the mission."

With evident sarcasm, Justice Anthony M. Kennedy asked, "To prohibit the
use of public facilities for religious purposes shows the state is neutral
as to religion, is that your point?"
Copyright 2001 The New York Times Company

Oryginal:
http://www.nytimes.com/2001/03/01/politics/01SCOT.html?pagewanted=3Dall

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