Free Exercise, Free Speech, and "Mere Religious Worship"

I am admittedly fond of Justice Clarence Thomas and the unique role he plays on the Court. He's the only Justice who feels no need to ask questions from the bench during oral argument and doggedly continues to argue for a strict interpretation of the Commerce Clause. As with the other eight Justices, he is no doubt a substantive player.

With that said, as I researched and wrote a recent article I found myself asking, "CT, what were you thinking?!" The case is Good News Club v. Milford Central School, 533 U.S. 98 (2001). The issue was whether a religious club could conduct its activities after school on school premises. The Court held under the Free Speech Clause that the Club's speech (focused on, inter alia, the teaching of moral values) was allowable content within the forum, and that denying the Club access to the space was unconstitutional viewpoint discrimination.

Okay, so far so good, but in Footnote Four things got sticky. Justice Thomas, writing for the majority, made the following statement: "In any event, we conclude that the Club's activities do not constitute mere religious worship, divorced from any teaching of moral values." Id. at 112 n.4 (emphasis added). This statement raises the unspoken question: What if the Court HAD found the Club's activities to be "mere religious worship?" What a can of worms has been opened! Who gets to determine what is allowable religious speech and what is forbidden "mere religious worship?" What will be the effect of this brief, yet provocative and potentially powerful statement?

One need look no further than the Second and Ninth Circuits to see that courts are seizing upon this language. They are at least flirting with relying on FN4 to uphold state regulations and procedures that forbid the exercise of "religious services" and "religious worship services" in public spaces. See Bronx Household of Faith v. Bd. of Educ. of N.Y., 492 F.3d 89 (2d Cir. 2007); Faith Ctr. Evangelistic Church Ministries v. Glover, 480 F.3d 891 (9th Cir. 2007). The trend emerging from these two cases puts religious groups in a quandary as their protection under the Free Speech Clause is eroded by application of FN4 in Good News Club.

Perhaps I will address my suggested solution in a later post. For now, chew on what you, as a lower court judge, would do with FN4 and how you would define "mere religious worship." Talk about a hot potato, but is it too hot to touch? Apparently some judges are willing to take the risk that when the music stops playing they will be the one holding the potato.

See my working paper on this topic.