The Supreme Court/The Supreme Court.iso/pc/ascii/1991/91_2024/91_2024.zc

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SUPREME COURT OF THE UNITED STATES
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No. 91-2024
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LAMB'S CHAPEL and JOHN STEIGERWALD, PETI-
TIONERS v. CENTER MORICHES UNION FREE
SCHOOL DISTRICT et al.
on writ of certiorari to the united states court
of appeals for the second circuit
[June 7, 1993]

  Justice Scalia, with whom Justice Thomas joins,
concurring in the judgment.
  I join the Court's conclusion that the District's refusal
to allow use of school facilities for petitioners' film view-
ing, while generally opening the schools for community
activities, violates petitioners' First Amendment free-
speech rights (as does N. Y. Educ. Law 414 (McKinney
1988 and Supp. 1993), to the extent it compelled the
District's denial, see ante, at 1-2).  I also agree with the
Court that allowing Lamb's Chapel to use school facilities
poses -no realistic danger- of a violation of the Establish-
ment Clause, ante, at 10, but I cannot accept most of its
reasoning in this regard.  The Court explains that the
showing of petitioners' film on school property after school
hours would not cause the community to -think that the
District was endorsing religion or any particular creed,-
and further notes that access to school property would not
violate the three-part test articulated in Lemon v.
Kurtzman, 403 U. S. 602 (1971).  Ante, at 10.
  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 Establish-
ment 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, 505 U. S. --, -- (1992)
(slip op., at 7), conspicuously avoided using the supposed
-test- but also declined the invitation to repudiate it.
Over the years, however, no fewer than five of the cur-
rently sitting Justices have, in their own opinions, person-
ally driven pencils through the creature's heart (the
author of today's opinion repeatedly), and a sixth has
joined an opinion doing so.  See, e.g., Weisman, supra, at
-- (slip op., at 14) (Scalia, J., joined by, inter alios,
Thomas, J., dissenting); Allegheny County v. American
Civil Liberties Union, Greater Pittsburgh Chapter, 492
U. S. 573, 655-657 (1989) (Kennedy, J., concurring in
judgment in part and dissenting in part); Corporation of
Presiding Bishop of Church of Jesus Christ of Latter-day
Saints v. Amos, 483 U. S. 327, 346-349 (1987) (O'Connor,
J., concurring); Wallace v. Jaffree, 472 U. S. 38, 107-113
(1985) (Rehnquist, J., dissenting); id., at 90-91 (White,
J., dissenting); School Dist. of Grand Rapids v. Ball, 473
U. S. 373, 400 (1985) (White, J., dissenting); Widmar v.
Vincent, 454 U. S. 263, 282 (1981) (White, J., dissenting);
New York v. Cathedral Academy, 434 U. S. 125, 134-135
(1977) (White, J., dissenting); Roemer v. Maryland Bd. of
Public Works, 426 U. S. 736, 768 (1976) (White, J.,
concurring in judgment); Committee for Public Education
& Religious Liberty v. Nyquist, 413 U. S. 756, 820 (1973)
(White, J., dissenting).
  The secret of the Lemon test's survival, I think, is that
it is so easy to kill.  It is there to scare us (and our
audience) when we wish it to do so, but we can command
it to return to the tomb at will.  See, e.g., Lynch v.
Donnelly, 465 U. S. 668, 679 (1984) (noting instances in
which Court has not applied Lemon test).  When we wish
to strike down a practice it forbids, we invoke it, see, e.g.,
Aguilar v. Felton, 473 U. S. 402 (1985) (striking down
state remedial education program administered in part in
parochial schools); when we wish to uphold a practice it
forbids, we ignore it entirely, see Marsh v. Chambers, 463
U. S. 783 (1983) (upholding state legislative chaplains).
Sometimes, we take a middle course, calling its three
prongs -no more than helpful signposts,- Hunt v. McNair,
413 U. S. 734, 741 (1973).  Such a docile and useful
monster is worth keeping around, at least in a somnolent
state; one never knows when one might need him.
  For my part, I agree with the long list of constitutional
scholars who have criticized Lemon and bemoaned the
strange Establishment Clause geometry of crooked lines
and wavering shapes its intermittent use has produced.
See, e.g., Choper, The Establishment Clause and Aid to
Parochial Schools-An Update, 75 Cal. L. Rev. 5 (1987);
Marshall, -We Know It When We See It-: The Supreme
Court and Establishment, 59 S. Cal. L. Rev. 495 (1986);
McConnell, Accommodation of Religion, 1985 S. Ct. Rev.
1; Kurland, The Religion Clauses and the Burger Court,
34 Cath. U. L. Rev. 1 (1984); R. Cord, Separation of
Church and State (1982); Choper, The Religion Clauses
of the First Amendment: Reconciling the Conflict, 41 U.
Pitt. L. Rev. 673 (1980).  I will decline to apply
Lemon-whether it validates or invalidates the govern-
ment action in question-and therefore cannot join the
opinion of the Court today.
  I cannot join for yet another reason: the Court's state-
ment that the proposed use of the school's facilities is
constitutional because (among other things) it would not
signal endorsement of religion in general.  Ante, at 10.
What a strange notion, that a Constitution which itself
gives -religion in general- preferential treatment (I refer
to the Free Exercise Clause) forbids endorsement of
religion in general.  The Attorney General of New York
not only agrees with that strange notion, he has an
explanation for it: -Religious advocacy,- he writes, -serves
the community only in the eyes of its adherents and
yields a benefit only to those who already believe.-  Brief
for Respondent Attorney General 24.  That was not the
view of those who adopted our Constitution, who believed
that the public virtues inculcated by religion are a public
good.  It suffices to point out that during the summer of
1789, when it was in the process of drafting the First
Amendment, Congress enacted the famous Northwest
Territory Ordinance of 1789, Article III of which provides,
-Religion, morality, and knowledge, being necessary to good
government and the happiness of mankind, schools and the
means of education shall forever be encouraged.-  1 Stat.
52 (emphasis added).  Unsurprisingly, then, indifference
to -religion in general- is not what our cases, both old and
recent, demand.  See, e.g., Zorach v. Clauson, 343 U. S.
306, 313-314 (1952) (-When the state encourages religious
instruction or cooperates with religious authorities by
adjusting the schedule of public events to sectarian needs,
it follows the best of our traditions-); Walz v. Tax Comm'n
of New York City, 397 U. S. 664 (1970) (upholding prop-
erty tax exemption for church property); Lynch, 465 U. S.,
at 673 (the Constitution -affirmatively mandates accom-
modation, not merely tolerance, of all religions . . . .
Anything less would require the `callous indifference' we
have said was never intended- (citations omitted)); id., at
683 (-our precedents plainly contemplate that on occasion
some advancement of religion will result from governmen-
tal action-); Marsh, supra; Presiding Bishop, supra (exemp-
tion for religious organizations from certain provisions of
Civil Rights Act).
                   *  *  *
  For the reasons given by the Court, I agree that the
Free Speech Clause of the First Amendment forbids what
respondents have done here.  As for the asserted Estab-
lishment Clause justification, I would hold, simply and
clearly, that giving Lamb's Chapel nondiscriminatory
access to school facilities cannot violate that provision
because it does not signify state or local embrace of a
particular religious sect.