Shecky Scalia's Yukfest

Shecky Scalia's Yukfest

Shecky Scalia's Yukfest

Oral argument from the court.
March 1 2001 3:00 AM

Shecky Scalia's Yukfest

Thirty seconds into the oral argument for Good News Club v. Milford Central School District, a case whose fate will almost surely be determined by the High Court's decision in a 1993 case—Lamb's Chapel v. Center Moriches School Districtand Scalia is off:


Scalia: "Counsel, did you cite Lamb's Chapel to the 2nd Circuit?"

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate and hosts the podcast Amicus.

Thomas Marcelle (for Good News Clubs): "Yes."

Scalia: "Yet Lamb's Chapel is not even cited in the 2nd Circuit Opinion? It's not even mentioned, is that correct?"

Marcelle: "Yes."


Scalia: "Yet I assume the 2nd Circuit Judge who wrote this opinion was aware of Lamb's Chapel."

Marcelle: "Yes, because we cited it to them . . ."

Scalia: "I also assume the 2nd Circuit judge who wrote the opinion was aware of the case because it reversed an earlier decision of his ..."

Scalia's timing is perfect, the setup, flawless, and all he requires of an oral advocate, at least on days like today, is that they play George to his Gracie.


The facts in Good News are so close to those of Lamb's Chapel that the 2nd Circuit's decision to just disregard the earlier case may itself be grounds for reversal. Both cases pit the free-speech clause against the establishment of religion clauses in the First Amendment. Both involve fundamentalist Christian groups attempting to gain access to New York public school facilities, after hours, to conduct religious instruction. Both implicate New York school districts' attempts to bar the religious groups on the grounds that public schools may not be used for religious purposes without running afoul of the Establishment Clause.

But whereas Lamb's Chapel dealt with a group that wanted to show religious films after class, the Good News Club in Milford, N.Y., offers weekly meetings for children aged 6 through 12, in which they hear Bible stories, memorize verses, sing religious songs, and play religious games. Affiliated with a national Christian missionary organization, the Milford Good News Club initially met at a church in the small farming community. When the local school stopped busing kids to the church, the club sought the school district's permission to hold meetings after school in the school building. The school district denied permission, basing the denial on its characterization of the group's activities as "the equivalent of religious worship." So one issue in this case is whether Bible stories and songs are more like "moral education" or "prayer."

The district court initially granted an injunction forcing the school to permit the club to meet, but after discovery had been conducted, and when each party filed for summary judgment, the court determined that the Milford school was a "limited public forum" for free speech analysis purposes, and that barring all religious instruction was not a viewpoint-based ban on Christian speech, but a neutral ban on all religious speech.

Constitutional Law on the head of a pin? The Supreme Court has decided that your free speech rights turn on where you are trying to speak. Traditional public forums (like streets or parks) allow for less government restriction on speech than a limited public forum (say, a school) or nonpublic forum (like a hospital). In a limited public forum, the Supreme Court has held, if the government has opened the space up for speakers, it cannot impose speech restrictions that are 1) unreasonable; or 2) viewpoint-based. After Lamb's Chapel, schools cannot proscribe the teaching of secular subjects from a religious viewpoint, but they can still (evidently) bar religious activities like prayer before an assembly or the reading of the Ten Commandments.


So another issue in this case is whether barring all religious speech in public schools is viewpoint-based. And whether there's a difference between "teaching secular values from a Christian perspective" and teaching Christianity.

Squeezing the school district from the other side is the other arm of the First Amendment, which bars the state from doing anything to "establish" religion. Now, admittedly, trying to sort out whether there's been an Establishment Clause violation requires slogging through the absurdity that is the "Lemon" test. Named after Lemon v. Kurtzman,  this Establishment Clause test is aptly named because it doesn't work. Still, it keeps getting trotted out in Lamb's Chapel, Widmar, and other free speech/Establishment Clause cases, when courts of appeals want to beat back religious groups asserting free speech rights. Here I must cite for you Justice Scalia's feelings about Lemon, from his concurrence in Lamb's Chapel:

As to the Court's invocation of the Lemon test: like some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again, frightening the little children and school attorneys of Center Moriches Union Free School District. Its most recent burial, only last Term, was, to be sure, not fully six feet under: Our decision in Lee v. Weisman ... conspicuously avoided using the supposed "test," but also declined the invitation to repudiate it. Over the years, however, no fewer than five of the currently sitting Justices have, in their own opinions, personally driven pencils through the creature's heart (the author of today's opinion repeatedly), and a sixth has joined an opinion doing so.

Scalia slays me.


Good News is getting attention because it foreshadows how the court may react to President Bush's faith-based charities initiative. The court granted certiorari in part because the 8th Circuit decided a similar case in favor of the Good News Club.

Scalia is immediately up in arms about the 2nd Circuit's decision to uphold the district court by ignoring the holding of Lamb's Chapel. O'Connor makes it clear her only issue today will be: If the school district has the right to go back and amend their policy to bar any groups from using the facilities, or any groups from using the facilities until after 6 p.m., then what is the district whining about? When asked by O'Connor whether a church would be permitted to conduct an entire church service on school grounds, he answers yes.

Ginsburg wonders whether he might have an Establishment Clause problem if that church service happened at the same time as, say, a Boy Scouts meeting. She asks whether the Good News Club doesn't believe that the tender age and lack of sophistication of the children at issue doesn't increase the chance of them believing that their school is promoting a particular religion? (Widmar dealt with a college campus and, presumably, with more sophisticated students.)

Scalia, who's lobbing softballs, makes Marcelle explain to Ginsburg that the Supreme Court upheld the religious group's right to pray in Widmar.

Actually, the best way to characterize the whole day is this: The justices are speaking to one another, but using the lawyers to do it, in much the way that your mom once told you at the dinner table, to "tell your father I'm still extremely upset about his behavior at Aunt Hester's dinner party last week ... " Counsel learns quickly to just say yes and no to the justices' very, very leading questions.

Souter asks whether meetings that "sound like Sunday school" and occur around children too young to know that they're not being proselytized don't distinguish this case from Widmar.

Scalia offers to clarify Souter's point by distorting it wildly: "He's worried about kids hanging around after the bell, instead of skipping off, like mine do ... being infected by religion ... "

Souter cuts him off. "I should never spurn Justice Scalia's help, but I think you understood my question." The gallery cracks up. Score one for Souter.

When counsel tries to answer, Scalia again helps him out. "Was this the basis for the school's decision?"

Marcelle, who gets it now, responds, "No."

Scalia: "Was it part of the 2nd Circuit's opinion?"

Marcelle: "No."

Scalia: "Was it even raised before the 2nd Circuit?"

Stevens presses Marcelle on whether he's saying that the New York statute allowing school districts to bar religious speech is unconstitutional or just the board's decision regarding the Good News Club. Counsel responds: "Widmar answers that question."

Stevens retorts, "I would like Marcelle to answer." Score one for Stevens.

Kennedy asks if the case can be decided just on the free speech grounds, and Rehnquist adds that it's unfair to ask Marcelle to speculate "about the consequences of our holding."

At which point Scalia adds: "Trust me Mr. Marcelle, we can write this opinion so that it says almost nothing."

Swish. The gallery busts up.

Frank Miller stands to defend the school board's decision to bar the club. He gets into trouble with the court for mischaracterizing the nature of the Equal Access Act. When it becomes clear that he's lost Breyer ("There's a clear rule; you can't pray in school"), he starts to look despondent. He tries to argue that a limited public forum may prohibit the whole subject of religion.

Souter tries to help Miller distinguish between state limitations on religious "discussions and religious worship."

Here's where Scalia disagrees: "Having a Bible lesson and memorizing is worship?"

"Yes," says Miller.

Kennedy launches the following weird-bomb: "Isn't memorizing the preamble of the Constitution training of some kind? Is it that we don't want you to know or be able to recite the First Amendment?"

Am I the only one who sees a difference between memorizing the Bill of Rights and the catechism?

When Miller tries to tell Breyer that somehow banning the whole subject of religion is permissible regulation, Breyer shoots back: "Why doesn't that make it worse?"

Then Rehnquist asks, should the Boy Scouts be banned too? They study morality, they recite a motto. Miller replies that mentions of morality do not equal worship.

Rehnquist: "This is more like Sunday school, it's not worship the way we think of worship ..."

Scalia adds: "Children this age don't worship. They go to Sunday school."

Souter: "Don't they pray?"

Miller: "Yes."

Scalia: "If you're saying a prayer is religious worship, shouldn't any group that says an opening prayer be excluded?"

Miller: "I wouldn't necessarily say that."

Scalia: "You just did."

Shecky scores again! He's in full tilt mode.

Scalia: "Teaching scripture is not necessarily a worship service. It's a great distortion to call that a worship service, even if they throw in a prayer or two ..."

Miller tries again.

Miller: "Even if it's not an Establishment Clause violation, the school could say it's divisive or disruptive."

Scalia: "Divisive in the community. ... Must be a terribly divisive community. I'm glad I don't live there."

Miller tries to explain that different religions have different resources to fund such clubs and that kids shouldn't be at risk of being wooed away by better, cooler religions with better cake and movies.

Rehnquist: "You're saying there's a heckler's veto?"

Here's where I ask an eminent legal scholar whether I'm wrong in believing the whole Establishment Clause isn't just a big heckler's veto. Wasn't it designed to protect minorities from being oppressed by government-endorsed religion?

Scalia closes Miller's testimony by asking whether the record in this case reflects vast numbers of other children, "hanging around school" gazing longingly in the direction of the religion classes. Herein, evidently, is his replacement for the Lemon test. It's the Longin' test, whereby government is only barred from establishing religion in cases where kids are hanging out gazing into schoolhouse windows and begging to be allowed to participate.

It's genius. It solves Justice Breyer's workability problem, and Rehnquist's "heckler's veto" problem. State-sponsored religion is OK so long as the cupcakes they serve are ickier than Mom's.