The Line Between Free Speech and Establishment of Religion

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In balancing the various First Amendment clauses it is important to remember that the Establishment Clause forbids “government speech” which endorses religion, while the Free Speech and Free Exercise Clauses protect private speech endorsing religion

Child Evangelism Fellowship of Minnesota v. Minneapolis Special School District No. 1 is a story of a school district that denied CEF permission to continue to utilize the district’s after school enrichment program that is “designed to encourage social, mental, physical and creative abilities, promote leadership development and improve academic performance.” CEF had previously been involved in the program and had distributed flyers on which the district disclaimed sponsorship and endorsement. After the district denied CEF’s access to that program its attendance declined from 47 down to 5.

A district official had overheard a prayer to Jesus Christ and thereafter the district informed CEF that it would no longer have access to the program due to its “prayer and proselytizing.”

The district justified its actions by the Establishment Clause “because it was part of an after-school program that was accorded funding resources available to all such programs.”

CEF countered the Establishment Clause argument with a Free Speech argument. Since secular improvement programs like the boy scouts and girl scouts were still able to use the program, they argued, the district was shutting them out because of their viewpoint, thus violating their First Amendment Free Speech rights.

The Court found that the district was targeting a certain kind of speech. That being the case, the district had to show a compelling interest in shutting out that speech. (In the vernacular, the district had a lot of ‘splaining to do). Athough avoiding a violation of the Establishment Clause could be a compelling interest, here the district had clearly shown that it was not endorsing the particular content of CEFM notwithstanding its funding of the program.

The United States Court of Appeals held that the district had violated the Free Speech rights of CEF. It summarized:

the Supreme Court has made it clear that the Establishment Clause does not proscribe “private religious conduct during nonschool hours merely because it takes place on school premises.”… Instead, the Establishment Clause requires neutrality, as opposed to hostility, towards religion. … And as the Supreme Court has stated and restated, “neutrality is respected, not offended, when the government, following neutral criteria and evenhanded policies, extends benefits to recipients whose ideologies and viewpoints, including religious ones, are broad and diverse.”

The district will not be appealing, and will pay over $100,000 for CEF’s legal fees.