(Fwd from Brad Clanton) re: Cert. grant / viewpoint discriminatio n

[Lupu, Ira (Chip)]

Why doesn't the soundest view of the "Good News Club" problem go
as follows:
The school's rationale for the exclusion is that it is required by the
Establishment Clause.  (is there any other rationale?) If it is clearly
NOT so required (because the Club is voluntary, noncoercive, and
after-school; Mergens definitively upholds the constitutionality of
permitting student religious clubs on public school grounds, and the
permissibility of this one follows a fortiori; no objective observer
could reasonably attribute this private speech to the state), then
there is no legitimate reason for the exclusion, and it therefore
violates the Equal Protection Clause, even under minimum rationality
review, because the exclusion does not relate to any legitimate state
interest.  (The opinion does say that the Club abandoned its equal
protection argument on appeal; does anyone know why?)  The
closest the opinion comes to dealing with the argument I suggest is
in its assertion that the school policy is not unreasonable because 1)
that conclusion is "foreclosed by precedent", citing its own prior
opinion in Bronx Household, and 2) that the "Milford school would
not want to communicate to students of other faiths that they were
less welcome than those who adhere to the Club's teachings."  But
the Boy Scouts and the 4-H Club (which the school permits) send
the same message; if you don't adhere to their techings, you are
less welcome (or unwelcome) in the Club.
Wouldn't an Equal Protection holding of this sort -- undercutting the
separationist, Establishment Clause grounds for the school's policy --
persuasively support reversal while avoiding the harder questions
raised by the Free Speech and Free Exercise arguments?


Ira C. ("Chip") Lupu
The George Washington University School of Law
2000 H St., NW
Washington D.C 20052

(202) 994-7053

ICLUPU at main.nlc.gwu.edu