Lamb's Chapel v. Center Moriches School District - Oral Argument

Argument of Jay A. Sekulow

Chief Justice Rehnquist: We'll hear argument first this morning in number 91-2024, Lamb's Chapel and John Stig... Steigerwald v. Center Moriches Union Free School District.

Mr. Sekulow.

Mr. Sekulow: Mr. Chief Justice and may it please the Court:

This case is about censorship of Lamb's Chapel's speech, which was entertained for the purpose of having a film series at the school facilities to show and discuss contemporary family issues.

The direct targeting of religious purpose as an exclusion under the access policy of the school district is both content based and viewpoint based, and does not meet Constitutional scrutiny.

Unknown Speaker: Under what?

Mr. Sekulow: Under... well first of all, we would assert that it's purely... this case is based purely on religious perspective, it's viewpoint based.

Most recently, R.A.V., but also under--

Unknown Speaker: Well, so--

Mr. Sekulow: --Yes, Your Honor.

Justice White: --So what... what provision of the Constitution are you relying on?

Mr. Sekulow: First Amendment, as applied to the States through the Fourteenth, freedom of speech.

Justice White: Which part of it?

Mr. Sekulow: Free speech.

Justice White: Just free speech.

Mr. Sekulow: Well, this case is based on three issues when it was originally brought fourth in the complaint.

The First Amendment's freedom of speech clause, there was an allegation that there was a violation of the establishment clause, and there was an allegation that there was violation of free exercise.

And, quite frankly, the nature of the discrimination that takes place here in the context of Lamb's Chapel's application being denied violates all three.

From the First Amendment perspective--

Justice White: What did the... what did the court of appeals decide?

Mr. Sekulow: --The court of appeals came to the conclusion that acknowledging that there were a wide diversity of uses, which the respondents have conceded as well, that, in fact, because there were no prior religious uses, the... the school district could then not allow Lamb's Chapel to meet.

They held, in fact, that it was a close question whether there was prior religious uses, but determined, based on review of the Salvation Army being there, the Southern Gospel Harmonizers, that it was no... there was no previous religious purpose in any meaningful way.

Justice White: Well, as the case comes to us, do we judge it on the basis that the court of appeals was correct in saying that... that this program had a religious purpose?

Mr. Sekulow: The respondents have... petitioners have conceded Your Honor, Justice White, that yes, the... the movie series was dealing with contemporary family issues from a... a religious perspective and are quite up front that it is for a religious purpose.

Justice White: All right.

Mr. Sekulow: Our concern here, and I think what is evident here, is that the viewpoint discrimination that has been engaged in by the school district comes from their own admissions.

The respondents have stated that the decision... and I'm quoting from their brief.

"The decision to exclude petitioners was due to the admittedly religious nature of the film and the school district's prohibition against the use of school property for religious purposes. "

They then state that, and again quoting,

"Each of these applications were denied due to the decidedly religious perspective of the film. "

If Lamb's Chapel Church desired to utilize school facilities during noninstructional time in the evening, pursuant to the school's access policy, and if they determined to discuss the same issues, contemporary family issues, with the sole exception being that they do not make religious references or religious perspectives, then Center Moriches could not object to allowing the group to be there.

This isn't a case where we are arguing that a school district must open its facilities to a broad array of uses.

Here the school district, by policy, has stated that they are opening their facilities to community use for social, civic, recreational purposes and other uses pertaining to the welfare of the community.

Justice White: What about political speech?

Mr. Sekulow: They actually allow political speech, however--

Justice White: What does the... what does the rule say?

Mr. Sekulow: --The rule says this, that political speech could take place, political meetings could take place.

However if, in fact, the political meetings were partisan, if they were sponsored by a political organization, then there would have to be a vote of the district to determine whether, in fact, that group could meet, which I think presents another Constitutional issue which is not one that we're... we're concerned with today, but I think it points to the problem.

Justice White: Well, I know, but religious speech is not the only speech that is at least presumptively barred.

Mr. Sekulow: Political speech by a party has to go through an admission process, if you will.

So... but here, and I think what's relevant here is this is not a question of where, Justice White, they've eliminated or construed their statute to remove the subject matter of family issues from the permissible speech.

This is not a question of whether the speech topic was permissible, nor is this really a question of whether the group was entitled to access.

Clearly the admission policy, the use policy of the school district states that it is open to not-for-profit outside groups.

Here the exclusion was based... as they have conceded, based on its content, the nature of the film, its viewpoint, its perspective.

And they've allowed, in other existing uses, several discussions on family issues.

For instance--

Justice Souter: Mr.... Mr. Sekulow--

Mr. Sekulow: --Yes, Justice--

Justice Souter: --You would... on your view, you would also be entitled to win, wouldn't you, if we don't accept your characterization of it as viewpoint based, but held it to be content based.

On your theory, you'd still win, wouldn't you?

Mr. Sekulow: --Yes, we do, Your Honor.

Justice Souter: So that if we said what was excluded was simply discussions of religion or religious proselytization, you would still, on your viewpoint, win.

Mr. Sekulow: Certainly, especially in the context of the policy that the school district has adopted here.

The... the school district has adopted a policy which, as I said, opens its facilities to social, civic, recreational use and other uses pertaining to the welfare of the community.

Our submission is quite clear that we believe the religious perspective, religious discussions, serve civic, social, and welfare of the community needs.

So--

Chief Justice Rehnquist: But what if the school district had adopted a policy of excluding both religious and political speech on the grounds these tend to cause controversy and arguments and we'd just rather stay away from them?

Mr. Sekulow: --I... I still would say, Mr. Chief Justice, that that would not... could not justify the exclusion.

Because the policy here, in its beginning, opens up facilities uses... that's again for social, civic, recreational purposes.

I think the religious view or religious perspective on social, civic, and welfare of the community needs is relevant, and there's no basis upon which--

Chief Justice Rehnquist: Well--

Mr. Sekulow: --Unless, of course, a compelling interest could be shown.

Chief Justice Rehnquist: --Could... could... could the State exclude only partisan political speech and say that we just don't want to get into that sort of thing?

Mr. Sekulow: I think that brings up a different question, but here the... the free exercise issue would come up and I think an establishment clause issue comes up in the context of our case.

Justice White: How about the... how about the... how about the political question--

Mr. Sekulow: I--

Justice White: --You were just asked?

Mr. Sekulow: --I think that political--

Justice White: But didn't answer, yeah.

Mr. Sekulow: --Political speech is appropriate in the designation that the school district has adopted.

Could a school district adopt one that narrowly tailors and says no political speech because of our concerns?

Maybe they could, but that's not what they've done here.

And I... I think that maybe--

Justice Kennedy: Well, but what's the difference.

It... it seems to me--

Justice White: --You still haven't answered it.

Justice Kennedy: It seems to me you haven't answered the question.

Mr. Sekulow: --I don't think that you can say--

Justice Kennedy: You talk about free exercise.

We're talking about... just about speech.

If there is a... a prohibition against political speech, is that valid?

And if not, how is that different from the case we have here?

Mr. Sekulow: --A prohibition--

Justice Kennedy: That's the question you've been asked.

Mr. Sekulow: --Justice Kennedy, if there was a prohibition on just political speech, I think it suffers the same Constitutional defect.

It has... there has to be some type of compelling interest here to justify the exclusion, especially when the subject matter is a valid topic.

And I... I would also point out here that there were discussions of civic issues, political issues, meet-the-candidates nights.

Chief Justice Rehnquist: Well... well then you're saying that if a school district opens up its forum to any outsiders, it's got to... up... open it up across the board.

Mr. Sekulow: No... no I'm not, Mr. Chief Justice.

Chief Justice Rehnquist: Well it seems to me that's what you're saying.

Mr. Sekulow: No.

What we're saying is this.

The school district here has adopted a policy that states that social, civic, recreational uses and other uses pertaining to the welfare of the community can take place.

They've made the affirmative determination that, in fact, those type of activities can take place.

A school district certainly can... a school district could close its facilities.

They're not... they're not being compelled to open them--

Justice Scalia: But doesn't... doesn't political speech fall under that category, that... that... that--

Mr. Sekulow: --I believe... I believe it does, Justice Scalia.

That's what I was saying too--

Justice Scalia: --Hum.

Mr. Sekulow: --The question here is not whether political speech can take place, because under the policy political speech can take place.

The exclusion is if it's of a... from a partisan organization, and I think that suffers from Constitutional defects as well.

Justice Souter: Also, by the same token would you say that if they... they could not exclude a... a religious service, for example.

If an outside group wanted to... to celebrate a mass or a baptism or something like that, could the... I presume, by a parity of reasoning, that could not be excluded.

Mr. Sekulow: I think under the policy that's been adopted, Justice Souter, that removing a service, religious service, would suffer the same Constitutional problems.

And I would state that what this Court said in Widmar is... is relevant to that.

In Widmar the Bible group meeting of Cornerstone was in... in reality a service.

There were hymns, there was singing, there were discussions on biblical commentary.

That is a church service and I don't think that a school district that decides to open its facilities... as I said, they don't have to open their racilities, they've decided to open their facilities... can then parse the speech so closely to determine when religious speech crosses the line, if you will, to a religious service.

Justice Souter: But are... are you accepting the... the ultimate premise of the other side that they can, in fact, define the extent to which they open it up?

Mr. Sekulow: I think they can in the extent of speaker identification, clearly, and as regard to the subject matter of the discussion.

But to have an exclusion on--

Justice Souter: So the answer is there... quite clearly, they could exclude all political speech and they could exclude all religious speech.

Mr. Sekulow: --Not when the... Justice Souter, not when the policy granting access says social--

Justice Souter: No, no.

But you were... you're just changing the premise of my question.

My... the premise of my question was that their policy granting access says no religious speech, no political speech.

On your view, that would be permissible.

Mr. Sekulow: --Not in the context... well, if it was just a flat... there were no outside groups for other purposes.

I think the... the hypothetical that you're giving depends on... and I don't want to change the hypothetical--

Justice Souter: Yeah, there would be outside groups for other purposes, there just wouldn't be outside groups for political purposes and religious purposes.

Mr. Sekulow: --I... I don't think that would... would be a valid exclusion.

Justice Souter: Well, why not?

I thought your argument was proceeding on the fact that they've opened the doors wide and they cannot then pick and choose within the extent to which they have opened them.

But that apparently isn't your argument and you're now saying they've got to open the doors wide.

Mr. Sekulow: Absolutely not, Justice Souter.

Justice Souter: Then how do we draw the line?

Mr. Sekulow: Let me make... let me make the position... what we're saying is this.

The school district here has elected to open its facilities and they've conceded to a wide diversity of uses.

They have targeted the religious purpose speech for exclusion.

They have conceded that the religious exclusion in our case is based on the perspective of the film series and its religious nature, that's their concessions.

Once you have an... a governmental municipality organization opening up its facilities to social, civic, recreational uses and other uses pertaining to the welfare of the community, they cannot then close it because of a religious perspective.

Justice Scalia: Is your... is your theory, Mr. Sekulow, that you cannot pick on religion, that... that... that if religion is just one of many things excluded it's okay.

Mr. Sekulow: No.

Justice Scalia: But if it's the only thing excluded or one of only a couple of things excluded, it's not okay.

Mr. Sekulow: My position is... this is my position, that when you open up a school district... when a school district elects to open up its facilities for community use for such uses as social, civic, and welfare of the community needs, you cannot exclude the religious perspective.

Justice Scalia: Why?

Because that includes too many needs.

Mr. Sekulow: No, because the religious perspective is relevant to civic concerns.

Justice Scalia: Oh--

Mr. Sekulow: And that's... and that's where the viewpoint discrimination is here.

And I think the... the record in our case points that out quite clearly, Justice Kennedy.

Justice Scalia: --But they haven't... but they haven't said civic concerns.

They've said civic concerns except religious concerns.

Mr. Sekulow: No, actually--

Justice Scalia: I mean don't--

Mr. Sekulow: --Precisely what they've said is we are allowing outside not-for-profit groups to utilize school facilities due... for access policy... under our access policy for social... meetings for social, civic, recreational purposes--

Justice Scalia: --Yes.

Mr. Sekulow: --And other uses pertaining to the welfare of the community.

Justice Scalia: But heaven's not there and they've said except--

Mr. Sekulow: Yes.

Justice Scalia: --Religious.

Mr. Sekulow: Right.

Justice Scalia: Okay.

Mr. Sekulow: And that's precisely our point.

That is the type of viewpoint discrimination--

Justice Scalia: Yes, why?

Because they've singled out religious--

Mr. Sekulow: --Yes, they have targeted religious speech for exclusion in the nature of the entire--

Justice Scalia: --Right.

Well--

Mr. Sekulow: --Facilities that they've opened up.

Justice Scalia: --But... but you would not mind if they singled out religious... religion for exclusion along with a lot of other things.

That if... that is they said we are going to... we are going to have... we are going to allow bowling.

Mr. Sekulow: That's--

Justice Scalia: Nothing else.

We're not going to allow religion, we're not going to allow politics, we're not going to allow other socially good things, you wouldn't have an objection then, would you?

Mr. Sekulow: --No.

But that's the type of subject matter restrictions that a school district in this type of situation certainly... they could say just for bowling, just for tennis.

Justice Scalia: But why is that... why is that okay and this one not okay?

Mr. Sekulow: Because here they have opened up the facilities intentionally for social, civic, and welfare of the community needs.

Justice Scalia: No, they haven't.

They've said social, civic, and welfare except religious.

Mr. Sekulow: But they've... they have... that's what they cannot do, however.

Justice Scalia: We know you say they cannot do it.

Why can they not do it?

Mr. Sekulow: Because this Court has said that viewpoint discrimination, even in a nonpublic forum, is not acceptable.

And I... I don't think that--

Justice Scalia: But you've just said viewpoint discrimination is acceptable if they say we're going to have bowling but we're not going to have--

Mr. Sekulow: --I... I guess the argument could be made if there's a religious perspective on bowling.

But when you open up the topic and the subject matter to social, civic, and welfare of the concerns, and I think the record points to this.

The... there's two things that I think are... are extremely important with regard to the record.

Family Counseling Services, which was an organization that utilized the facilities for counseling, dealt with the... precisely the same issues that the school district would have dealt with... that the church would have dealt with in its film series.

Justice Scalia: --You also said that they could not exclude religious services, didn't you?

Mr. Sekulow: I... I think under the policy that they've adopted, they cannot.

Chief Justice Rehnquist: Well, you don't... you don't have to defend some of these rather extreme hypotheticals to win your case.

Your position, I take it, is that since they have had family rearing matters shown and discussed, they can't exclude a family rearing presentation because of a religious perspective in it.

Mr. Sekulow: That's correct.

And that... that is, I think, what... what I was... at bottom, is what this case is about.

This case--

Justice White: Well, isn't... isn't... aren't you I would think you would argue that we've already decided this case.

In Widmar.

Justice White: --We have argued that this Court's decision in Widmar has decided this case.

Justice White: Well, you've hardly mentioned it.

Mr. Sekulow: I have not, we've been dealing with the hypotheticals.

[Laughter]

But I will address... I will address the Widmar issue.

But let me say first... answer to the Chief Justice's question and then I will proceed to answer you, Justice White.

This is a case where the identical subject matter, family issues, child abuse, marital conflict, was discussed by Family Counseling Services and a number of other groups.

And the film series, if Lamb's Chapel was allowed to show it, addressed the same issues, albeit from a religious perspective.

And that is what is prohibited by the policy and that is the viewpoint discrimination when the subject matter is acceptable and the speaker's entitled to access, that this Court has said that type of viewpoint discrimination--

Justice Stevens: May I give you one other hypothetical?

Mr. Sekulow: --Certainly, Justice Stevens.

Justice Stevens: Supposing there's a group that thinks families would be much healthier and happier and get along better if they all smoked marijuana together, and they came and they want to advocate that under the subject matter of child rearing and family values.

Would they have to give that group access to the facilities?

Mr. Sekulow: I think that, in that case, unless the school district could show a compelling interest to justify the exclusion, they would have the same problem.

And I'm... I'm not so sure they would.

This is not an educational--

Justice White: Well, the fact is it would be against the law.

Mr. Sekulow: --Well, that's... that's what I was going to say.

And the compelling interest would be--

Justice Stevens: And the law should be changed in order to accommodate this family value.

Mr. Sekulow: --That's a different hypothetical.

[Laughter]

Justice Stevens: It's the one I had in mind all along.

Mr. Sekulow: The first... the second hypothetical is different.

You're talking about speech that is not advocating--

Justice Stevens: Well say... or just say family value would be promoted by soak... by having the children learn how to smoke cigarettes at an early age.

Mr. Sekulow: --I think perhaps a school district would then have to assert that the health concerns... and now, again, this is another situation not precisely... or really very remote from our case... but where maybe the school district could come up with some compelling interest to justify medical exclusion based on that.

But that's not what happened here, and this is not a case where they're advocating illegal activity, although you would think from the New York Attorney General's perspective that's exactly what's going here.

They... they say religious advocacy is only good to those who already believe... already adherents of the faith.

But Widmar has addressed this issue precisely.

By policy, the school district... the University in Widmar encouraged student groups and stated that they would like... they encouraged student groups to meet and form for social, civic, political, recreational, and educational purposes.

Here, the Center Moriches School District has adopted a policy and--

Justice White: But in Widmar... in Widmar, the group, the religious group that wanted to meet was a student group.

Mr. Sekulow: --I don't think in this case--

Justice White: It was a student group in Widmar.

Mr. Sekulow: --That's correct.

And the school--

Justice White: Now I would... I would suppose that... I would suppose that if the school in this case had opened its... had opened its property just for student activities dealing with social and such, but no outside groups whatsoever, you probably wouldn't be here.

Mr. Sekulow: --Correct.

Different case.

And--

Justice White: Well yeah, but that... but that happens to be Widmar.

Mr. Sekulow: --But the distinction, and I think the distinction cuts our way here, Justice White, is that in Widmar the university determined to open its school district up for student groups to use it.

Here, the school district determined to open up its school facilities for outside uses.

Justice White: Exactly.

Mr. Sekulow: So I think the speaker identification restrictions in Widmar and what was adopted here, albeit different, cut our way.

Because what we have is a school district affirmly saying community groups, come in and use our facilities, for precisely the same policy in scope that was in Widmar.

The exclusion is the same as well.

In Widmar the exclusion was that they prohibited school district... university facilities to be used for the purposes of religious worship or teaching.

Here the exclusion states that school district facilities may not, or school premises may not be used for religious purposes, and the justification for the exclusion is the same as well.

Justice Scalia: Mr. Sekulow.

Mr. Sekulow: Yes, Justice Scalia.

Justice Scalia: Well, on that narrow basis, you know, what you're asking us to do is relatively limited.

You're saying if... if you... if you allow the discussion of a certain topic you cannot permit a religious viewpoint on that topic.

But the next case just around the corner is... is a group that wants to come into this same... the same school district and they say we want to address the... the topic of religion, not... not family, we want to address separately the topic of religion.

And it's not a question of giving a religious viewpoint on some other topic which... which the rules allow, but rather the topic of religion in and of itself which is as a separate topic--

Mr. Sekulow: I believe--

Justice Scalia: --Now.

Mr. Sekulow: --That case is not different, and I'll... here's the reason.

My statement is if the topic... if the preamble to the use application is for social, civic, recreational purposes and other uses pertaining to the welfare of the community, a religious or religion has value, in my client's perspective and others, to civic affairs.

That is where I think the... that's not saying that a school district can--

Justice Scalia: Can it say civic, social, and... and recreational purposes other than politics?

Can it say that?

Mr. Sekulow: --I think politics, political speech, has relevant application to social and civic issues.

I don't think a school district can say that.

Justice Scalia: I know it does, but the school says it's just too controversial--

Mr. Sekulow: That would--

Justice Scalia: --And therefore we're going to exclude that from our otherwise all-inclusive program.

Mr. Sekulow: --Not without justifying it by--

Justice Scalia: They can't exclude anything.

Mr. Sekulow: --Yes, Justice Scalia, they can exclude... they could close the forum down.

They could say just bowling.

But they can't open it up to social, civic--

Justice Scalia: Okay, I see.

Mr. Sekulow: --And recreational use and say no to religion or religious perspective.

Justice Scalia: Well--

Mr. Sekulow: No to politics, albeit a different case.

Justice White: --Well, all candidates for office would be entitled to use the schoolhouse to... to make their speeches then.

Mr. Sekulow: They did, in this case.

The... there was a meeting of the candidates where they each gave their proposal.

And I think that points out what's... what's taken place here.

This isn't a problem where a political group is having trouble getting access; they have had access.

The problem is--

Justice Kennedy: Mr. Sekulow.

Mr. Sekulow: --Yes, Justice--

Justice Kennedy: Mr. Sekulow, if I were an attorney for a school board and was listening to your argument, I would go back to my board of education and say if you open your auditorium to two or three different lectures in the community, based on the argument I heard from Mr. Sekulow, you're going to have to allow a Catholic mass to be said in that facility.

Because I've heard him say nothing that would allow the Court to write a decision that gives any kind of reasonable assurance that we can design a category to prevent this use once we have two or three different lecture groups come in from the community at large.

Mr. Sekulow: --I don't think that that would be a difficult policy for the school district to write, Justice Kennedy.

A school district could write a policy, and I don't want to be in the place of writing their policies but can write a policy limiting the subject matter and limiting the speaker identity and still have other groups participate.

But once you open it up to social, civic... this isn't just social, civic, and recreational use.

They also have in their--

Justice Kennedy: But under your First Amendment submission, which is that there must be absolute content neutrality--

Mr. Sekulow: --Yes.

Justice Kennedy: --In viewpoint neutrality.

Mr. Sekulow: Yes.

Justice Kennedy: --I... I contest that you could... could... could accomplish the objective that you've just outlined.

Mr. Sekulow: I think... I'm not... shouldn't be in the position of drafting the regulations, but I would be quite forthright in saying we've thought about that issue and I think a... a policy could be drafted which states that school facilities will be used for recreation.

School facilities will be used for the student groups to discuss student issues.

You don't have to open it up, but when you start opening it up to social, civic, and other uses pertaining to the welfare of the community--

Justice Scalia: It's a question of how broad the other uses are then, isn't it?

Mr. Sekulow: --Absolutely.

And it's not... it's not a--

Justice Scalia: So... so let me come back to the question I asked before but which you... you... you would not answer.

If you... if you exclude religion when you're letting in virtually everything else that seems to be a problem to you.

Mr. Sekulow: --Absolutely.

Justice Scalia: But if you're excluding religion when you're excluding a lot of other stuff, that does not seem to be a problem.

Is that the case?

Mr. Sekulow: No.

I don't think--

Justice Scalia: Well then what is the--

Mr. Sekulow: --In the context--

Justice Scalia: --Then I don't understand what the case--

Mr. Sekulow: --Well here's... here's... let me make... put it in at it's bottom.

By policy and practice the school district has determined to open its facilities to these various uses, the social, civic, and welfare of the community.

Having done that--

Justice Scalia: --Except religion.

Mr. Sekulow: --That's right.

But having done that, they cannot exclude it as to religion.

And I think... and the reason is this Court has said--

Justice Scalia: But if they only... if they only let in recreation and theater, then they can exclude religion.

Mr. Sekulow: --I think--

Justice Scalia: Right?

Why is that?

Mr. Sekulow: --Well I don't think if... let me take your theater hypothetical.

If they let in theater groups to perform issues, but then say no to Handel's Messiah... which this school district, by the way, allowed Handel's Messiah but they found that not to be religious in a meaningful way... I don't think they can do that.

But could a school district say we're going to open our facilities to drama groups--

Unknown Speaker: No.

Mr. Sekulow: --For the presentation of Shakespeare, yes.

Justice Scalia: But they--

Mr. Sekulow: But not have--

Justice Scalia: --But they could say... but they could say no mass.

The could say no mass.

Mr. Sekulow: --Under that policy, yes.

I don't think that's under--

Justice Scalia: Right.

But under this current policy you say they can't even say no mass.

Mr. Sekulow: --I don't--

Justice Scalia: Right?

Mr. Sekulow: --I would have to concede, which I'm not going to, that a mass would be irrelevant to the community good or community welfare or civic, social concerns.

They could draft a policy to prohibit masses.

They could draft a policy to prohibit this film series from showing, but--

Chief Justice Rehnquist: You say you would have to concede it, but you're not going to.

Mr. Sekulow: --I would not--

[Laughter]

I will... I said I will not concede it because... I'll make that very clear, I believe, and our perspective that we're taking here is that when you open it up to social, civic, and recreational uses and other welfare of the community, that a mass would serve the community.

That doesn't mean everyone has to go to the mass.

This isn't a captive audience.

This isn't a situation where students are there, during the day.

And I think this... what this Court said in Mergens is... is relevant to that.

If a... if high school students were mature enough to understand that a school district does not endorse everything it fails to censor, I think the adults in the community of Center Moriches could do the same.

And I don't think it presents the type of Constitutional dilemma that... that some have made it out to be, that we'll have to allow all religious services.

If allowing the religious service is going to be so divisive to the community that they now can justify the exclusion under this policy, no they can't.

Justice Souter: So you're saying a narrow categorization is possible, and I think you're also saying that if a... if a general categorization, including speech generally is allowed, there cannot be a specific exception to it for subject matter.

Mr. Sekulow: That is correct.

Justice Souter: So it... it simply boils down to a question of the precision with which they specifically identify the permitted uses.

Mr. Sekulow: Absolutely.

This ordinance, although maybe not suffering the same constitutional defect that the Board of Airport Commissioners were, wher it was, you know, no First Amendment activities in here, suffers from that same type of problem.

They have not chosen to narrowly tailor their restrictions.

Instead, what they've done is open it up t social, civic, recreational, and other uses pertaining to the welfare of the community, but say no if it's a religious perspective, no if it's religious content.

Mr. Chief Justice, I'd like to reserve--

Justice Stevens: May I just make sure I understood on of your statements.

You mentioned Shakespeare if they opened up for drama.

Did you say yes or no to the question of whether they could limit it to Shakespeare?

Mr. Sekulow: --I think they could limit it to Shakespeare if they had a... a standard which was specifi saying we're going to have Shakespeare.

But they cannot say we're going to allow drama groups and they exclude Handel's Messiah because we do not want a religious group or discriminate against a religious play if it was opened up to... to drama generally.

And that's what the difference is.

They've not chosen to limit to specifics.

They've been... they've chosen to open it to everything but religion.

Justice Stevens: But if they do open it up to... if they open it up to drama generally, they can't be concerned about whether it's just adult drama or teenage drama or any kind of drama, it's just open generally.

Mr. Sekulow: Once they've made that... once they've said we're going to allow our facilities to be used for dramatic productions, you cannot say, now, no to--

Justice Stevens: X-rated movies are okay.

Mr. Sekulow: --That's a different... different question, because that... and here's the difference.

In the drama context, if they open up the drama, open it up to dramatic use, okay, they can then not say no to the religion.

If it's an X-rated movie shown for, for instance, for profit, they've already said that speaker identity won't take place then.

Justice Stevens: No, I disagree.

Mr. Sekulow: But if they don't like the movie.

Justice Stevens: --Throw in the for profit.

Mr. Sekulow: Okay.

Well, if they're saying an X-rated movie's going to be shown at the school district facilities, this... the analysis I don't think changes Constitutionally.

Again, I think that in... in a real sense, a town... this is the meeting hall, the town hall that was discussed... mentioned in Lemon.

And I think that the interesting issue and the important issue here at bottom is not that school districts have to open its facilities up, not that they can't narrowly tailor them, but once they've opened them up to such a broad array of topics, they cannot exclude religious speech or religious purpose speech, as they have determined.

And here that's exactly what they've done and that type of viewpoint discrimination this Court should not tolerate.

Mr. Chief Justice, I'd like to reserve the rest of my time for rebuttal.

Argument of John W. Hoefling

Chief Justice Rehnquist: Very well, Mr. Sekulow.

Mr. Hoefling, we'll hear from you.

Mr. Hoefling: Mr. Chief Justice and may it please the Court:

It's the position of the respondent in this case, the Center Moriches School District and the president of the board, that they have denied access to the petitioners in this case based upon a well tailored State statute, the New York State Education Law, section 414, and a series of regulations promulgated under that statute.

We submit that the school district has essentially established a limited public forum, and it not an open public forum, in which certain uses are not permitted.

And we further submit that we have... in the course of using this facility and making it available to certain groups within the community, have been consistent in the uses that we have permitted.

We submit that the petitioner is erroneous... has taken an erroneous position in looking at this particular film series as being part of a larger picture, namely the use of the facility for social, educational, and community welfare activities.

In fact, if you... if you look at the record, both in the district court from the testimony of Pastor Steigerwald and the submission of Pastor Steigerwald in his third application for the use of the premises, in both of those instances he's indicated that he is not prepared to abide by the regulation of the district, and, in fact, he intends to use the facility for educational institution after... for educational... religious education after hours in the school setting.

Chief Justice Rehnquist: Well, what policy of the district was it that Paster Steigerwald said he couldn't or wouldn't abide?

Mr. Hoefling: It was... it was number 7, Your Honor.

Chief Justice Rehnquist: Well, you don't have... I mean just state it generally.

You don't have to read it word for word.

Mr. Hoefling: Your Honor, the... the policy of the school district with regard to this particular use was that the premises would not be used for religious purposes.

Chief Justice Rehnquist: And that meant any sort of a presentation that had a religious connotation to it.

Mr. Hoefling: We submit, Your Honor, that that, as... as the school district has used that policy, means that to the extent somebody... someone is prepared to come forward and use the facilities for the purpose of proselytization or urging somebody to adopt a particular lifestyle which is based upon certain religious precepts, is an... an inappropriate use in our forum.

Chief Justice Rehnquist: Well, would the policy permit someone to come in and urge the adoption of a particular lifestyle that was not based on any religious precepts?

Mr. Hoefling: Yes, it would, Your Honor.

Chief Justice Rehnquist: So you would allow lifestyle presentations, lifestyle proselytizing, so to... so to speak, of a secular nature, secularly inspired but not religiously inspired.

Mr. Hoefling: Yes, Your Honor, that's correct.

Chief Justice Rehnquist: You think that's consistent with our opinion in Widmar?

Mr. Hoefling: Yes, Your Honor, I do.

I... I think that the opinion in Widmar, it's very clear that as to the university students in Widmar, the university is an open forum.

That is not the case in our... in our scenario here.

And, in fact, in allowing an open forum, everybody is entitled to the access that the students--

Chief Justice Rehnquist: But it seems to me what you're saying is that you have an open forum except for any religious viewpoint.

Mr. Hoefling: --No, Your Honor, I respectfully submit that what we've done in this case is establish certain specific uses to which the facility may be put and certain uses to which the facility is... is not allowed to be put.

Unknown Speaker: Yes--

Mr. Hoefling: Including... I'm sorry.

Chief Justice Rehnquist: --But it... it is... it isn't... I mean I gather from what you say that a speaker could come in and urge the adaptation of a particular lifestyle so long as he was urging it on a secular basis, but that he... so that that subject matter is permissible.

But a speaker who urges the adoption of a lifestyle based on a religious theme or a religious passage could not do it.

Mr. Hoefling: That's correct, Your Honor.

And... and... and the focus of... of the district in looking at religion in this particular regard is that... and it's not just the religious exclusions that we've... that we've fashioned in our regulations and tracked in the State statute, but there are prohibitions in terms of commercial use of the premises and prohibitions with regard to political uses of the premises.

In doing that, the school district is attempting to avoid certain controversial areas which, in terms of religion, if you open the forum to a particular religious use, may well bring you into conflict with establishment problems and may result in entanglement problems which the school district would rather avoid.

Justice Scalia: Entanglement.

Mr. Hoefling: And in order to avoid that--

Justice Scalia: Entanglement problems?

Mr. Hoefling: --Yes, Your Honor.

Justice Scalia: Why... why is that?

Mr. Hoefling: I submit, Your Honor--

Justice Scalia: That the... the janitor who's going to be in the building.

I don't understand who gets entangled.

Mr. Hoefling: --No, Your Honor.

I submit that... I submit that what happens is... one of two things happens.

Either we wind up allowing masses and baptisms and communion and other religious services to occur on the premises.

Justice Scalia: Some school districts do that.

Mr. Hoefling: I understand that.

And that's certainly--

Justice Scalia: They do it in Virginia.

Mr. Hoefling: --That's certainly their right to do that, Your Honor.

But there is no--

Justice Scalia: Well, not according to you.

There's establishment problems.

Mr. Hoefling: --No, there's no Constitutional requirement that that be allowed.

Justice O'Connor: Mr. Hoefling--

Mr. Hoefling: Yes.

Justice Scalia: --Well, I'm... I'm not talking about a Constitutional requirement.

I'm talking... you were talking about a Constitutional prohibition.

Mr. Hoefling: Uh-hum.

Justice Scalia: You said there's an establishment problem in doing that.

Mr. Hoefling: Yes, Your Honor.

I... I submit that in--

Justice Scalia: So then these Virginia districts that do it, and for all I know... I live in Virginia so I know that it's there, it may well be in other States, you say that... that's a problem.

Mr. Hoefling: --Yes, I do, Your Honor.

I submit that--

Justice Scalia: Why is that?

Mr. Hoefling: --I submit that... I submit that the first... the first prong of the three-pronged test is that it must have a secular purpose.

And, in fact, it has a religious purpose.

Justice Scalia: Uh-hum.

Mr. Hoefling: And not a secular purpose.

Justice Scalia: Well, let's assume a school district that leases its... its... its facilities for any purpose at all.

Mr. Hoefling: Uh-hum.

Justice Scalia: You know, commercial, political, anything at all.

They... they must, however, not allow a church group that wants to lease it of a Sunday to conduct a service there.

Mr. Hoefling: Yes, Your Honor.

I think that runs into--

Justice Scalia: The Constitution requires that.

Mr. Hoefling: --Yes, sir.

And I think it also runs into a problem in terms of the primary effect tends to... to advance religion as a proposition, and that that is also the second prong of the establishment clause test that we run into difficultly with.

I think that in recognition of those problems, the school district has stepped back and attempted to distance itself from religious organizations and kept them out of this otherwise limited forum, as it properly may do under the Constitution.

Justice O'Connor: Mr. Hoefling.

Mr. Hoefling: Yes.

Justice O'Connor: If... if the university in the Widmar case had adopted the same policy as your school district, do you think the result in the case would have been different?

Mr. Hoefling: Well, Your Honor, I submit that in Widmar, as this Court has held, that was an open public forum as to those students because--

Justice O'Connor: Excuse me.

The question I asked you, though, was whether if the university there had adopted the same policy you've adopted, whether the result in the case would have been the same?

Mr. Hoefling: --I think the result in Widmar probably should be the same, because the framework of forum analysis in that case, even with this policy in place in the university, would be a different analysis than the analysis here.

In Widmar--

Justice O'Connor: Why... why is that, because it's a university and this is not?

Mr. Hoefling: --Yes, Your Honor.

Justice O'Connor: Is that the distinguishing mark, then?

Mr. Hoefling: That is... that is the significant difference in the two cases.

As to the students at the university, the university is, in fact, an open forum for ideas and discussion and learning in all types, in all levels.

In our particular case, as to the students who attend the school during the daytime--

Justice White: What if the university in Widmar had--

Mr. Hoefling: --I'm sorry, Your Honor?

Justice White: --What if the university in Widmar had adopted exactly the same rule?

It didn't limit access to the university grounds to students or student activities, it said the university facilities are open to all groups for social, welfare organizations, et cetera.

It had exactly the... had exactly your rule but just excluded the political speech and religious speech.

Mr. Hoefling: In terms of student groups?

Justice White: Wouldn't there... wouldn't Widmar have come out differently?

Mr. Hoefling: In terms of student groups, Your Honor?

Justice White: No, no.

Mr. Hoefling: Or the community?

Justice White: No, no, no, no.

The same church... the same church wanted to come in and do what... what the church in this case wanted to do.

Mr. Hoefling: I understand, Your Honor.

Justice White: As the community nonstudent group and there had been hundreds of other nonstudent groups allowed on the university campus, would Widmar have come out differently?

Mr. Hoefling: Your Honor, we submit that if it was an off campus nonstudent group who sought access in Widmar, the forum is a different forum than the university forum for students and the result there should have been the same result that we got in the district court and the Second Circuit here.

Justice Souter: You... you seem to be making--

Mr. Hoefling: Yes.

Justice Souter: --Two... coming up with two categories that you think are important.

One is a category of university forums, is that correct, that makes a different and that's your... basically, your answer to Justice White's question, I guess?

Mr. Hoefling: Well, Your Honor, I... I think that the university itself is an example of an open public forum.

Justice Souter: So it's a... it's necessarily a subset of... of... of what, a designated public forum?

Mr. Hoefling: It... the university, in and of itself as to the students, is an open public forum under Widmar.

Justice Souter: Well, it's... is it a... maybe I'm just getting mixed up in definitions, but are you saying it's a designated public forum which is necessarily open?

Once you open a university, you have... so far as the students are concerned, you necessarily have a public forum for the students?

Mr. Hoefling: Your Honor, we submit that in terms of a university setting such as the university in Widmar, it was indeed an open public forum.

It has traditionally been--

Justice Souter: I know that's what you're saying, but my question is is that a necessary conclusion that follows from your view of what a university is for First Amendment purposes?

Mr. Hoefling: --Yes, Your Honor.

Justice Souter: Okay.

Now, do you... are you also suggesting that in order to win, we recognize... we must recognize in this case a... a fourth forum category, that is the... the limited designated public forum?

Mr. Hoefling: Your Honor, I think that the language that comes out in our brief is... is a function of, as much of anything, the language that this Court has used and the language in the Second Circuit.

And we've tried to accommodate those two terms together.

I'm not sure that it's necessary to determine that there is specifically a fourth category of... of speech regulation, but that in our particular case it certainly... this forum, as to outside groups, takes on the appearance of a limited public forum or a designated public forum that has not been opened up to the petitioners.

Justice Souter: Okay.

So you're... you're saying a... a designated public forum can have limitations, but it cannot in a university setting with respect to university students, considered in isolation.

Mr. Hoefling: As... as to those students, it is an open public forum, Your Honor.

Your Honor, I think that this Court has certainly hinted at that besides the case of Widmar.

There... in Perry, the language of this Court is the right of access extends only to other entities of a similar character, and there is nothing wrong with having some distinction in access on the basis of subject matter and speaker identification.

And--

Justice Scalia: But you exclude... could you exclude communists from conducting any... any family movies?

You could say except those that... that have a communist or socialist viewpoint.

Mr. Hoefling: --I don't think--

Justice Scalia: Limited public forum, no communist or socialist viewpoints, is that okay?

Mr. Hoefling: --I think that may well run into a different set of problems than the problem we're discussing here today.

Justice Scalia: Why... why different?

Mr. Hoefling: Because I don't think you have the same establishment clause problems and entanglement problems that you confronted in a--

Justice Scalia: I see--

Mr. Hoefling: --In a religious setting.

Justice Scalia: --Oh, I see.

You... you defend... that's the defense of your statute, then, that the establishment clause makes you do it.

Mr. Hoefling: No, Your Honor.

We submit that it's a limited public forum--

Justice Scalia: Well, then... then don't make that argument then.

Wherein does the example that I gave you differ?

If you are not relying on the establishment clause to say that you cannot do this, then why is it different to exclude a religious viewpoint than to exclude a socialist or communist viewpoint in... in these movies?

Why can't I have a limited public forum, movies on anything you like but no socialists or communists?

Mr. Hoefling: --I submit that, again, in terms of areas involving political speech and religious speech--

Justice Scalia: Uh-hum.

Mr. Hoefling: --The school district has elected in this particular locality, and in the State of New York, to exclude those types of speakers.

Justice Scalia: I know that.

Mr. Hoefling: And I submit that--

Chief Justice Rehnquist: Justice Scalia gave you a hypothetical question.

Mr. Hoefling: --Yes.

Chief Justice Rehnquist: You ought to try to answer it.

Mr. Hoefling: Yes, Your Honor.

I... I submit that the school district, if it were to characterize those types of speech as political speech, could, in fact, exclude those speakers.

Justice Scalia: Is that right?

Just... just that type of political speech.

Mr. Hoefling: Yes, Your Honor.

Justice Scalia: That's very interesting.

Justice Stevens: But do I understand your statement you made earlier that supposing you had a communist group that wanted to address the subject of family values and they thought there was a value in not having children waste their time going to Sunday school or church and therefore they had a point of view that was definitely antireligious, they would be permitted, under your policy, to discuss family values in that context?

Mr. Hoefling: Yes.

Yes, Your Honor, that's correct.

Justice Stevens: And now why is that not... the contrast between that and what you have here, why is that not viewpoint discrimination?

Mr. Hoefling: Your Honor, we... we submit that the... the statute, the scheme that's been established by the statute and the regulations closes the forum to certain particular groups.

One of those groups are people who use the forum to proselytize a particular religious point of view.

That is not something we'd be confronted with by the example you cite.

Justice Stevens: But in my... my communist example, why couldn't one make the argument that they are trying to proselytize a nonreligious point of view.

And you're, in effect, discriminating against religions as opposed to those who are totally against religion.

Mr. Hoefling: Well, Your Honor, I think, again, that comes down to the focus of how... how narrow it is you look at the speech that's being engaged in.

We've looked at this in terms of religious speech and we haven't compared it to nonreligious speech or irreligious speech or antireligious speech, and we submit that in terms of religious speakers we have been consistent in our policy and that that is permitted within a limited public forum.

Justice Scalia: It is lawful because it is.

It is--

Mr. Hoefling: It is--

Justice Scalia: --Therefore it is lawful.

Mr. Hoefling: --Well, Your Honor, it--

Justice Scalia: No.

Mr. Hoefling: --It is lawful to the extent that it has been a longstanding policy and it exhibits the intention of this district and the State of New York not to open up their school districts, across the board, to any and all comers.

Justice Stevens: Your... your... your... do I understand your entanglement argument correctly that what you're saying is if we let this particular religious point of view be expressed, well the next step will be the mass and the ceremony.

You're going to have to draw a line somewhere which will involve entanglement in religious decision making, in effect.

Is that what you're arguing?

I don't have the--

Mr. Hoefling: Well, I submit that someplace even inbetween there, Your Honor, we... we come up with the question as to what is the next film series--

Justice Stevens: --Right.

Mr. Hoefling: --That Lamb's Chapel wants to show and who is it that is going to be speaking at that film series and how much are we to censor or look at or wonder about whether this is permissible or not permissible religious speech--

Justice White: Well, it seems--

Mr. Hoefling: --On behalf of--

Justice White: --To me your entanglement argument is... doesn't carry much with me because you... because in order to exclude under your no religion rule, you've got to decide whether this... whether this is going to be religion.

Mr. Hoefling: --Your Honor, we submit that they have already decided that when they've told us in their application that, in fact, it's going to be religious in nature.

And that's enough for us.

Justice White: Well that may be so in this case, but you... you're... you're bound to have to decide whether... some group that is going to come in with some program, whether in fact it's a religious program.

Mr. Hoefling: We submit that--

Justice White: And... and... and that is the... so you're never going to avoid your entanglement problem.

Mr. Hoefling: --Your Honor, we submit that there are often situations in which questions must be asked of a religious group, at least on the surface, to see if they qualify for certain tax benefits or certain other entitlements, but that doesn't necessarily involve entanglement.

But when we get to the point where we are prescreening what they're going to show to see whether or not it's too religious or too close to a mass or a service, too close to proselytizing, that becomes a very difficult issue and really does create entanglement problems for the district.

Justice Kennedy: Is there a difference between speech with a religious viewpoint and a religious exercise?

Mr. Hoefling: Again, I suspect that depends on the nature of the speech, Your Honor, and it's an issue that the school district would rather not get involved in screening.

Justice Kennedy: Well, the Constitution itself talks about free exercise, so might not that be a workable category?

Mr. Hoefling: I have not problem with free exercise in... in a public forum, Your Honor.

But in a limited public forum such as we advocate and the Second Circuit has... the district court and the Second Circuit has found we have here, we see no need to open the forum up to the religious speaker.

Justice Kennedy: The problem is... is that if you define religion... a limited forum in terms of content, it can be self-defeating because the whole idea of limited... of... of a public forum of some kind is to allow for the expression of speech, so you have to be very careful that you're not just engaging in a circular definition.

Mr. Hoefling: I understand that, Judge, but I... Your Honor, Justice Kennedy, I think that if you look at the picture that this Court has drawn, the framework that this Court has put together through the years from Greer and Widmar and Perry and the cases that outline forum analysis, I think it is a useful framework for the school district and for other local government officials to govern what they can and cannot do without running into Constitutional problems in the free speech area.

Justice O'Connor: Under some of our cases talking about public forum, I think you find an indication that the Court has said that reasonable and neutral limitations can be imposed.

Do you assert that the limitation here on religious content is reasonable and neutral?

Mr. Hoefling: Yes, Your Honor, we do.

It's neutral in that--

Justice O'Connor: That's a little hard to propose.

I'd like you to explain that.

Mr. Hoefling: --Yes, Your Honor.

We submit that it's neutral because, in fact, nobody with a religious perspective is permitted to use the facility in terms of proselytizing their faith.

Justice O'Connor: But people with an antireligious viewpoint are, and so you think that's neutral.

Mr. Hoefling: I'm... I'm not certain that that's a fair characterization, but if... if we were to look at that as a hypothetical, I'm not sure--

Justice O'Connor: You did with Justice Stevens a few minutes ago and I understood you to confirm that.

Mr. Hoefling: --Yes, I have no problem with that as a hypothetical.

Justice O'Connor: So you say that's neutral.

Mr. Hoefling: Yes, Your Honor.

Chief Justice Rehnquist: Well, that's like saying that a ban on left wingers is neutral because it includes both communists and socialists.

[Laughter]

Mr. Hoefling: Well, in terms of the area of religious freedom in a limited public forum, the school district is concerned with not only the free speech aspects of allowing religious speakers to come in, but they're concerned about establishment problems and they're concerned about entanglement problems.

That is those other categories are not problems that we are confronted with with regard to nonreligious speakers, and on that basis I see a distinction that is worth... worth making.

Justice Scalia: Mr. Hoefling--

Mr. Hoefling: Yes, Your Honor.

Justice Scalia: --This... this may be a little unfair because it's really not brief, but you... you are here representing both respondents, I... I gather, in this argument, and the Attorney General of New York, in his brief defending the... the New York rule says that... I'm quoting,

"Religious advocacy serves the community only in the eyes of its adherents and yields a benefit only to those who already believe. "

Does New York State... I grew up in New York State and in those days they... they used to have a tax exemption for religious property.

Is that still there?

Mr. Hoefling: Yes, Your Honor, it still is.

Justice Scalia: But they've changed their view, apparently, that--

Mr. Hoefling: Well, Your Honor--

Justice Scalia: --You see... it used to be thought that... that religion... it didn't matter what religion, but it... some code of morality always went with it and it was thought that, you know, what was called a God-fearing person might be less likely to mug me and rape my sister.

That apparently is not the view of New York anymore.

Mr. Hoefling: --Well, I'm not sure that that's... that--

Justice Scalia: Has this new regime worked very well?

[Laughter]

Mr. Hoefling: --I think that might be a question better posed to politicians who have been elected in the State of New York than myself, Your Honor.

We... we submit that... that particular sentence that's in the attorney general's brief is not necessarily something that... that I personally would subscribe to.

That does not... that does not mean, however, that there is some type of Constitutional compulsion to open the school district to a religious speaker simply because there is some moral force which religious speakers bring with them that otherwise betters the community.

Justice Scalia: However, there may be some compulsion to treat it... to treat religion like other civic goods.

And when you open up the forum to other social and civically beneficial things, you cannot exclude it to religion on the theory that religion, after all, is just private and only serves... only yields a benefit to those who already believe.

That certainly hasn't been our... our tradition in... in this country in viewing the role of religion in public life.

Mr. Hoefling: I agree with that, Your Honor.

I have no problem with that, the position you've just stated.

I just don't think that, again, the fact that religion has a particular positive influence in the community that extends even beyond believers is, of itself, enough to require a school district to grant access to religious speakers.

Your Honor, Justice O'Connor asked a question about the reasonableness before.

There are... although, to be... to be honest with you, I don't think the record has developed this.

I think there are good reasons for the school district to have a distinction between religious speakers and nonreligious speakers in a limited public forum such as we've established here.

I think the same thing can be said for political speakers and in terms of avoiding controversy, allowing the school system to be about the business of... the principal business of educating the children entrusted to its care.

That those types of purposes are reasonable purposes and reasonable enough to support the invocation of this particular rule.

Justice Stevens: May I ask you if there's any... there's not at issue here any right to use the school facilities to advertise the fact that there's going to be the program, is there?

Did they drum up their customers or their attendees independently of the... of the school?

Mr. Hoefling: That's my understanding, Your Honor.

Unknown Speaker: Yeah.

Mr. Hoefling: I have no... we have no reason to believe that it was done otherwise.

Justice Scalia: I don't... I don't--

--Counsel, just--

--I don't really understand what the entanglement problems are, even if it were a matter of allowing religious services.

Let's assume that... that the... that the school district leases its building... it's just a building.

It's a building and once the kids are out and it's in the evening and they're nothing... it's a building that they rent out to anything.

Let's assume they rent it even to for-profit organizations for conducting sales meetings, training of sales representatives, or whatever, but there is somehow an... an entanglement problem if... if they would lease it to a religious group that wants to conduct a service there.

Mr. Hoefling: Your Honor, I submit that if... if this facility were leased to a religious organization that wanted to use it for its own services, you wind up with questions about the character and purposes of the institution that's benefitted, which becomes... becomes the religious institution itself, by virtue of having a space that it doesn't otherwise have available to it.

Justice Scalia: Well, but... but you allow... you allow, you know, General Motors or whoever commercial.

You don't inquire into, you know, do... do we agree with all the... all the things that General Motors does.

You just lease it out, but you can't do that for religious groups somehow.

Mr. Hoefling: It does increase--

Justice Scalia: They suffer that special disability, that's what entanglement means.

Mr. Hoefling: --I... I submit to you that General Motors... leasing the premises to General... General Motors does not create the same establishment types of problems, establishment clause types of problems that you have with a religious institution.

Justice Thomas: Counsel, in your earlier discussions with Justice Stevens you indicated that communists would be able to give their perspective on family.

I... I assume from that that atheists would be able to give theirs under your rules.

Mr. Hoefling: Yes, Your Honor.

Justice Thomas: Would an atheist be allowed to debate a minister from a religious perspective under your rules?

Mr. Hoefling: I think that you... we wind up with a situation where if... if the purpose of the debate--

Justice Thomas: Let's just say it's... the debate is the religious value versus the atheistic value or content of a family, or family from a religious or atheistic perspective.

Mr. Hoefling: --I hadn't really given that any thought, Your Honor.

It... it seems to me that you, again, begin to bring into play the question of whether or not the... the religious speaker is... is going to use the forum to proselytize their faith.

Justice Thomas: Well let's say it's an atheist and an agnostic debating one minister.

Mr. Hoefling: And so the question becomes how many people on the part of the--

Justice Thomas: Well, I'm just wondering which... what is it about the debate that changes when you add a minister to an atheist and an agnostic.

Mr. Hoefling: --Again, Your Honor, I submit that the question that we're concerned about is whether or not proselytization is something that starts to happen in the school facility.

And--

Justice Thomas: Well how could that be proselytizing if it's simply two debating one.

Let's say 10 atheists debating one minister in front of--

Mr. Hoefling: --I don't think the numbers have anything--

Justice Thomas: --An atheist audience.

Mr. Hoefling: --I don't think the numbers have anything to do with that, Your Honor.

Justice Thomas: Well, I'm trying to move away from the proselytizing and also to move away from a situation in which the minister dominates the discussion.

Mr. Hoefling: I understand, Your Honor.

I submit that the school district nonetheless has the right to keep that particular type of activity from occurring because of our concern about religious uses.

Justice Thomas: So the addition of the minister is a problem, regardless of what the content is or the composition is.

Mr. Hoefling: Yes, Your Honor, under those circumstances I would submit so.

Thank you, Your Honor.

Rebuttal of Jay A. Sekulow

Chief Justice Rehnquist: Thank you, Mr. Hoefling.

Mr. Sekulow, you have 3 minutes remaining.

Mr. Sekulow: Thank you, Mr. Chief Justice.

The way I understand the respondents' argument, the atheists are in, the agnostics are in, the communists are in, the religion is not in.

In fact, even if it was a debatable point, as Justice Thomas just said, only one side of the debate is heard.

That's exactly what we've been asserting in our briefs and that's exactly what they've conceded in their briefs.

This is the type of viewpoint discrimination that this Court has not sanctioned.

And I'd also point out that this establishment clause concern has already been addressed.

This case is not in a vacuum.

Widmar is this Court's precedent, Mergens is this Court's precedent.

We're talking about a policy of equal access, and if the communists can come in and give their view on family life and others could give their view on family life, but you allow religion... I think if there's an establishment clause, it... it violates... their policy violates the establishment clause by interfering with religion.

Justice White: Do you think... that all... that the only exclusion with respect to religion was religious ceremonies, actually religious services?

Mr. Sekulow: In the context, Justice White, of this existing policy?

Justice White: Yes.

Mr. Sekulow: I think it's the same argument, because a religious service does have a religious perspective, especially if the sermon is addressing the family issues that were... that... in the debate, so to speak.

You had the secularist groups come in and give their view and then you had a religious service, they sang religious songs, they gave hymns, and then the sermon was family values and family issues from the Bible.

To deny that is viewpoint discrimination, to make... to make no Constitutional--

Justice White: Well, what if it wasn't a sermon about family values?

Mr. Sekulow: --I--

Justice White: What if it was a... what if the... what if the only thing that happened was that they read from the Bible, they read from the scriptures?

Mr. Sekulow: --I believe in that case the... the biblical admonition, whatever it might be, is still a religious perspective and probably, based on views of the Bible that people hold, would be valid as to civic, social, and recreational use.

The policy here is not different than Widmar.

Widmar limited it to student groups, the school district opened it to outside groups.

They've... the speaker identity is not an issue and the subject matter's not an issue.

There is one thing that is an issue.

The communists are in, the atheists are in, the agnostics are in, but religion's out because we don't like their viewpoint and that's what we're objecting to here.

Thank you, Mr. Chief Justice.

Chief Justice Rehnquist: Thank you, Mr. Sekulow.

The case is submitted.