4th Circuit rules (again) in favor of the Good News Club

[Ed Brayton]

Hamilton02 at aol.com wrote:

> I ask the following question for edification   -- How does one square 
> this decision with the 4th Cir's willingness to permit the Wiccan 
> woman to be excluded from delivering prayers at city council 
> meetings?  I'm blanking on the name of the latter case, but it would 
> seem that equality is at issue in both cases, and the results would 
> seem at first blush in conflict with each other. 
>  
> And what position did CLS take on the Wiccan case, if any?

Excellent question. One might add another: what position did the ACLU 
and/or Americans United take in this most recent case? There might well 
be hypocrisy on both sides of this one. The earlier case you're 
referring to was Simpson v Chesterfield Co. Board of Supervisors. That 
ruling can be found at 
http://pacer.ca4.uscourts.gov/opinion.pdf/041045.P.pdf.

It appears at first blush that the court did not even consider the 
question of this being a public forum of any kind, and looked primarily 
at Marsh v Chambers as the controlling precedent. From that ruling:

The parties here differ as to which lines of precedent govern this
case. Simpson rejects the County's argument that the principles of
Marsh v. Chambers suffice to resolve the dispute. She instead offers,
and the district court accepted, Larson v. Valente, 456 U.S. 228
(1982) (finding "denominational preference" to violate the Establishment
Clause), as well as Lemon v. Kurtzman, 403 U.S. 602, 612-13
(1971) (creating a general framework to evaluate Establishment
Clause challenges). We think her reliance on these cases is misplaced
and conclude that Marsh v. Chambers controls the outcome of this
case.

The court went on to note that Marsh was more on point and that it post 
dated both Larson and Lemon, and the court did not apply either of those 
cases in March. So it appears that the plaintiffs did not raise the 
public forum issue and the court did not consider it.

Ed Brayton
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