Earlier this month the Supreme Court of the United States handed down its decision in Good News Club v. Milford Central School. Widely hailed by religious groups (and lambasted by strict separationists), The Supreme Court held that the exclusion of religious groups from the limited, after-hours public forum that had been established by the school district to facilitate student clubs was an unconstitutional viewpoint discrimination against religious views (in violation of the Free Speech and Free Exercise clauses of the First Amendment). The Court rejected Milford’s claim that it was required to discriminate against religious clubs in order to avoid violating the Establishment Clause of the First Amendment.

Within hours of the decision, however, it became clear that what at first appeared to be good news for the Good News Club may actually turn out to be bad news, not just for that club but for every other student club as well. School board officials are reportedly considering a proposal to ban all student clubs rather than (heaven forbid) allow a bible study group to meet on school grounds. When faced with a similar court order to provide equal after-hours use of school facilities to the Fellowship of Christian Athletes student group, the Saddleback Valley Unified School District in Orange County, California, took just such an action, choosing to ban all student groups from campus rather than admit the Christian group.

A year ago, though, a similar legal challenge against the El Modina High School in Orange, California, produced the opposite result. A state court ordered the school to allow a gay rights club to meet on campus after hours on the same terms as other student clubs, as required by the federal Equal Access Act. Although the school board sought to comply by barring all non-curricular school groups, the court rejected that remedy, and the school was forced to admit the gay rights club over the vocal opposition of parents and community leaders. Apparently, a group espousing Christian views is more troubling to school officials and courts alike than a group fostering homosexuality.

Whether the Milford School Board will attempt to comply with the Supreme Court’s holding by banning all student clubs instead of admitting the bible club remains to be seen. But even if the bible club is admitted, there is still some bad news lurking in the Supreme Court’s ruling.

First the good news. The Supreme Court rejected the holding of the Second Circuit Court of Appeals that the Good News Club could be barred from equal access to the public school because it was "quintessentially religious" and its activities "fell outside the bounds of pure moral and character development." The Second Circuit’s holding would have been viewed as preposterous by our nation’s Founders. In his famous Farewell Address, for example, George Washington noted that "reason and experience both forbid us to expect that national morality can prevail in exclusion of religious principle." Benjamin Rush put it even more starkly: "where there is no religion, there will be no morals." And in the Northwest Ordinance, one of the organic laws of the nation, adopted in 1787 and re-enacted under the new constitution on the same day that the First Amendment (and its prohibition on laws "respecting an establishment of religion") was proposed, Congress provided: "Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged." Thus, in the battle between the Good News Club and the school board that would exclude only the Good News Club from the public square, the Good News Club won, and so did the view that religion might at least have some part to play in the moral development of our children.

There is another, larger battle at issue in the case, however. That is a war of philosophic ideas, between the natural rights principles of the Declaration of Independence and the moral relativism of the late Twentieth century. In this larger war, the "equal access" rationale upon which the Court relied may well represent a defeat, rather than a victory, for the moral views fostered by our nation’s Founders.

Modern thought and sensibilities have trouble distinguishing between the moral and the immoral, because questions of morality are, to the modern mind, simply matters of taste, of choice. The "equal access" rationale upon which the Good News Club case is based (as well as that of its predecessor cases, Rosenberger v. Rector and Visitors of University of Virginia and Lamb’s Chapel v. Center Moriches Union Free School District), is rooted in this modern notion. The Milford School Board is not required to admit the Good News Club to its facility because the club intends to bring the "Good News" of revelation and reason to Milford students, but rather because the school board, it is thought, has no business making any determination of what is fit for its students because, in the end, all such decisions are, for the modern mind, purely subjective.

As a result, every imaginable club will have a claim to equal access. Neo-nazi groups, man-boy love associations, satanic cults, and a host of other organizations will all claim that they, too, seek merely to hold "social and recreational meetings" that, in their view, "pertain to the welfare of the community." The non-preferential, neutrality principle that is the hallmark of the Court’s modern-day Establishment Clause doctrine makes it impossible for the Court to make, or allow our schools to make, such distinctions. In short, it makes it impossible for our schools to foster the kind of moral virtue our Founders thought necessary if this experiment in self-government was to succeed. As was evident in the disparate results in Saddleback Valley and El Modina High Schools, the raw will of political correctness rather than any claim of objective morality will be the likely victor in the end. The Good News Club has more work cut out for it than it knows.

Dr. Eastman is a professor of constitutional law at Chapman University School of Law, the Director of the Claremont Institute Center for Constitutional Jurisprudence, and an adjunct fellow at the Ashbrook Center for Public Affairs at Ashland University. "First Principles" is a monthly column that appears in the Los Angeles Daily Journal that addresses current legal issues in light of the principles of the American founding. Copyright 2001 Daily Journal Corp. Reprinted and/or posted with permission. This file cannot be downloaded from this page. The Daily Journal’s definition of reprint and posting permission does not include the downloading or any other type of transmission of any posted articles.