Singing Loudly

I've reconfigured and consolidated. This is simply my take on the "Mere Worship" Exception that will probably receive more scholarship from others if the Second Circuit continues their unconstitutional carving.

Under the 1st Amendment the Founding Fathers created protection for both speech and religious expression. Most forms of speech are protected the the 1st through the speech clause. Religious speech is specially protected, because it falls under both the freedom of expression and free exercise clauses.

It only follows that religious speech should be afforded significant constitutional protections. This hasn't been the case recently in the Courts of Appeals, specifically the Second Circuit. They have suggested a differentiation between discussions from a religious viewpoint, which would enjoy full constitutional protection, and "mere religious worship," which would not. This is an unconstitutional differentiation.

Where this originated was from a Second Circuit case in 1997, Bronx Household of Faith, that ruled that although a public school that had opened its facility to outside groups could not restrict access to groups wishing to discuss secular topics from a religious perspective, the school could forbid access to groups wishing to engage in religious worship. A Supreme Court decision shortly followed in a different case, Good News Club (2001), that held that a public elementary school couldn't prohibit a Christian club from meeting after school hours simply because the club was based on religious principles and taught the students through those principles. The church in Bronx Household went back to the Second Circuit in a second suit, and the Second Cir. found that the church did have the ability to use the school for its church services, because part of the services covered topics relevant to the forum the school had opened to the public, including issues regarding morality and character. However, the court found that the mere worship distinction had not been completely rejected by the Supreme Court.

I believe that this proposed line cannot constitutionally be drawn by the government. The Court is claiming that worship can exist in the absence of moral values, which I don't believe. Second, for the State to make such a determination would impermissible require it to excessively entangle itself with religion, making all decisions based specifically on the viewpoint of the speaker.

The government can exercise subject matter discrimination in an appropriate state forum, but the government can't discriminate based on the viewpoint. The Supreme Court allows protection for religious expression by holding that even though the government can't affirmatively advocate or compel participation in religion, nor may it show affirmative opposition or hostitility towards religion. This means that in government facilities with open forums there has to be equal access to religious organizations.

Recently the Second Circuit has been going against, if not the words, then the meaning of a long line of Supreme Court decisions by not protecting religious speech in any form. "Mere Worship" has been held to be expressive conduct that impermissibly offends the Establishment Clause. In Bronx Household I, the court started with the presumption that the right to free speech on government property is based on the nature of the forum and found that a school is a limited public forum. The regulations was found to be viewpoint neutral because it permitted religious speech, and only prohibited religious worship. Ultimately the court found that religious worship could be construed as "religious activities that take place according to prescribed form and order commonly known as religious services," and such activities could lawfully be banned from a limited public forum.

A case called Good News went to the Supreme Court with a similar fact pattern. The Court found that there was viewpoint discrimination holding that "speech discussing otherwise permissible subjects cannot be excluded from a limited public forum because the subject is discussed from a religious viewpoint." The Court found no valid Establishment Clause argument as the Club held meetings after school hours, and was only open to students who had received parental consent to attend. The Court stated that allowing the group would only ensure neutrality, not threaten it. Even if there was a danger of misperception by the school children of a governmental endorsement of religion, it would not be "any greater than the danger that they would perceive a hostility toward the religious viewpoint if the Club were excluded from the public forum."

After this decision the Second Circuit was asked to look at Bronx again. The court noted that the Supreme Court "did not say that the meetings were somehow distinct from worship services, but simply observed that they were not 'mere religious worship, divorced from any teaching of moral values.' " What are the religious elements? According to the court they are things like, "prayer, the singing of Christian songs, and communion." Whereas preaching and teaching were not deemed to be quintessentially religious, nor were activities with "secular elements, [like] a fellowship meal during which church members may talk about their problems and needs," and both types of religious activities occurred in the worship service.

This distinction is untenable. The main reason this mere worship distinction is problematic is because there is no coherent way to make a meaningful distinctions between religious worship and religious speech. First, I don't believe that you can have religious worship that is "divorced from any teaching of moral values." Worshiping a higher being expresses moral values about man's place in the world. In the Christian religion this encourages humility, concern for the poor, and the Golden Rule. Also, organizations that don't believe in a deity would need to be turned away if they wished to use the public facility to advocate why they do not believe in a deity and articulated their reasoning for such a belief. To allow one and not the other is simply viewpoint discrimination.

Furthermore, wouldn't defining religious worship violate the Lemon test still used in current religious freedom jurisprudence? In Lemon the subsidy for teachers at a private parochial school failed because it inquired into the content and viewpoint of the speech. Assuming this Lemon test problem isn't enough; what would be deemed enough secular content to move speech from worship to religious discussion? Who would determine that? This seems to be nothing but a blatant violation of the Establishment Clause.

What is more, worship isn't expressive conduct but it is speech. Worship is almost entirely speech rather than pure action. Praying? Speech. Preaching? Speech. Singing? Speech. What about raising or clapping hands? Are those incidental movements enough to move speech into the category of conduct? If so then a group of protesters would be considered performing actions if they also joined hands together and raised them in protest.

Assuming that worship were somehow deemed to be merely religious expressive conduct, then the O'Brien test would have to be passed. This wouldn't work because there arguably is not a substantial governmental interest since there is no Establishment Clause violation. In Rosenberger the court said that they have often "rejected the position that the Establishment clause even justifies, much less requires, a refusal to extend free speech rights to religious speakers who participate in broad-reaching government programs neutral in design." So if a religious group is allowed to meet in a public facility that has been opened to other groups there would not be a violation of the establishment clause. All groups would be treated neutrally. It seems silly that if a group wants to hold a yoga class where they could stretch, meditate, and think about peach in the world, that would be allowed, in contrast to a group that wants to raise their hands in the air as they sang about God, and thought about peace in the world given by God. The reason it is silly is because it violates the Third Prong of the O'Brien test and forces the government to focus on the message being sent instead of the mere conduct itself.

There are, of course, categories of speech that have been carved out such as obscenity and fighting words. If "mere worship" could actually be articulated is there anything about it that should disqualify it from being protected speech? The general trend of the court is to broaden the recent times from advertising to protection of virtual child pornography. It was never the intention of the framers to reduce constitutional protection for religious worship, which is protected twice in the First Amendment. The Second Circuit must reassess and abandon its focus on creating a mere worship distinction that would discriminate against certain forms of religious speech by labeling it as "merely worship."