dictionary

Good news at the Supreme Court, or maybe not

Rev. Stephen Fournier: "It's all about guaranteeing people the freedom of speech, and the school...is infringing upon my right of free speech."

By Charles Bierbauer
CNN Senior Washington Correspondent

(CNN) --The U.S. Constitution says, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."

It does not say the "Good News Club" shall have access to public school facilities for after-school religious activities. Nor does it say Milford Central School shall close its doors to just the Good News Club.

The Supreme Court must now decide whether the Constitution's "establishment clause" makes this an open or shut case.

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"We're not seeking unique access, just equal access," the attorney for the Good News Club Thomas Marcelle told the court in arguments this week.

An hour, once a week, after school just like the Girl Scouts and the 4-H Club. Those groups teach moral values, too, though not with a religious viewpoint.

"We have attempted to exclude the subject matter of religion," Milford Central's attorney Frank Miller told the justices in explaining the school's "community use policy.

"Milford is a small town in upstate New York, a few miles from Cooperstown and baseball's Hall of Fame. Children from kindergarten through 12th grade attend a single public school where Peter Livshin is the superintendent. The Good News Club is sponsored by the Milford Community Bible Church where Stephen Fournier is the pastor. Both say it's a friendly disagreement. Each thinks the First Amendment is on his side.

Superintendent Livshin: "The limited use forum precludes the use of facilities for religious purposes and specifically religious instruction. And that's what we found was going on."

Rev. Fournier: "It's about guaranteeing people the freedom of speech. And the school, as far as I'm concerned, is infringing upon my right of free speech."

Justice Stephen Breyer expressed some sympathy for the club's argument when he told the school's attorney: "It sounds to me like you're discriminating, in free speech terms, against religion."

The case came before the justices because lower courts disagree on what the establishment clause permits. There are more than 2000 Good News Clubs across the U.S. affiliated with the Child Evangelism Fellowship. While the Second Circuit appeals court in New York denied Milford's club access to the school, an Eighth Circuit appeals court in Missouri said granting access would not violate the separation of church and state.

Good News Clubs are open to children aged six to 12. The young age of the participants worried several justices who were mindful of a 1981 ruling -- Widmar v. Vincent--that required equal access to university facilities for religious groups.

"Age played a role in Widmar," said Justice Ruth Bader Ginsburg, suggesting college students had a "certain sophistication" younger people might lack.

Justice David Souter echoed the thought: "Isn't the nub of the matter in this case that you're not dealing with college students, you're dealing with grade school students?"

Justice Antonin Scalia dismissed Souter's notion school-age children would be pressured and proselytized to join the club.

"He's worried about other children hanging around the school after the bell rings...and they are infected seeing the other kids go into the activity," Scalia said.

The law is decided in chambers, not on the Supreme Court steps. But the debate continued outside after Wednesday's arguments.

Barry Lynn of Americans United for the Separation of Church and State: "This is aggressive evangelism by a group that promotes the idea that children as young as five and six are to be divided into the saved and the damned."

Brent Walker of the Baptist Joint Committee on Public Affairs: "We are very concerned about any vestige of state sponsored religion, particularly in the public school. But where there is none, then let the clubs meet."

The justices have wrestled the angels on church-state cases before under various constitutional provisions including the First and 14th Amendments.

• Lamb's Chapel v. Center Moriches School District found religious viewpoint could not be used to bar access to school facilities for after hours activities. Good News Club, naturally cites that ruling.

• Rosenberger v. Rector required the University of Virginia to include religious groups when distributing student activity funds.

• Mitchell v. Helms allowed federal funds to be used to purchase computers and other equipment for parochial schools.

• Santa Fe Independent School District v. Roe barred student-led, but school-sponsored prayer at high school football games.

• City of Boerne v. Flores, Archbishop of San Antonio struck down the Religious Freedom Restoration Act.

The justices -- Catholics, Protestants and Jews among their number -- should rule by the end of June. One thing the justices cannot summon to resolve the Good News Club case is divine intervention.

Charles Bierbauer, CNN's senior Washington correspondent, covers the U.S. Supreme Court and public policy issues. Send comments to Charles Bierbauer by writing to charles.lawcenter@cnn.com.