Access to Government Forums

In Boy Scouts of America v. Dale, 530 U.S. 640 (2000), the United States Supreme Court confirmed that Boy Scouts of America has the right under the First Amendment to the United States Constitution to select leaders who agree to live their lives according to the Scout Oath and Law.  In the relatively few instances in which open homosexuals have sought to test Scouting’s policies, they have not been permitted to serve as leaders.

Following Boy Scouts of America’s success in Dale, gay rights advocates and “politically correct” government officials have attacked Scouting’s right to have access to public facilities and government forums on an equal basis with other community groups. 

In determining whether the government may exclude an individual speaker or group from a “forum” or facility which is generally open to others based on the speaker’s or group’s expression, courts apply different standards depending on the type of forum involved.  No matter what the type of forum, however, any exclusion must be done on a viewpoint neutral basis.  Any exclusion based on the speaker’s viewpoint is unconstitutional. 

The types of forums discussed in the case law include the following: 

●   Traditional public forum:  A “traditional public forum” is a traditional forum for public discourse, such as a park or sidewalk.  Government restrictions on speech are subject to strict scrutiny and must be narrowly drawn to achieve a compelling state interest.

●   Designated public forum:  The government creates a “designated public forum” when it intentionally opens a nontraditional forum for public discourse, such as state university meeting rooms open to student organizations, school board meetings open to the public by state statute, advertising space in state-owned subway and commuter rail stations, and public libraries.  Restrictions on speech are analyzed with the same strict scrutiny as in a traditional public forum. 

●   Limited public forum:  The government creates a “limited public forum” when it intentionally opens a nonpublic forum to certain groups or topics, such as public school facilities open to community groups, state university student activities fund, state university facilities open to activities of registered student groups.  Restrictions on speech must be viewpoint neutral and reasonable in light of the purpose served by the forum. 

●   Nonpublic forum:  Government property may be a “nonpublic forum.”  Examples of nonpublic forums include airport terminals, military bases and restricted access military stores, and jailhouse grounds.  Restrictions on speech must be viewpoint neutral and reasonable in light of the purpose served by the forum, as in a limited public forum. 

Lease Programs

State and local governments may lease property to nonprofit groups on terms which are equal to or preferential to terms allowed to commercial groups.  In that context as well, governments may not engage in viewpoint discrimination.

In Metro Display Advertising, Inc. v. City of Victorville,143 F.3d1191(9th Cir.1998), the City of Victorville contracted with Metro Display to build bus shelters in exchange for Metro Display being able to lease advertising space on those shelters.  After a supermarket complained to the City about union ads on the shelters, the City told Metro Display that if it did not remove the ads, the City would find a pretext for canceling Metro Display’s contract.  Metro Display sued, and the district court denied the City’s motion to dismiss based on qualified immunity.  The Ninth Circuit affirmed, relying on the principle expressed in Rosenberger v. Rector & Visitors of University of Virginia that “[i]t is axiomatic that the government may not regulate speech based on its substantive content or the message it conveys.”  “Even in a nonpublic forum, . . . ‘the government violates the First Amendment when it denies access to a speaker solely to suppress the point of view he espouses on an otherwise includible subject.’” 

In Hawley v. City of Cleveland, 24 F.3d 814 (6th Cir. 1994), city taxpayers brought action challenging the lease of airport space to the Catholic Diocese for use as chapel.  The Sixth Circuit Court of Appeals held that operation of airport chapel did not violate Establishment Clause.  The Sixth Circuit noted that sixteen other airports in the United States lease space to religious groups for chapels. 

In Christian Science Reading Room v. City & County of San Francisco, 784 F.2d 1010 (9th Cir.), amended by 792 F.2d 124 (9th Cir. 1986), cert. denied, 479 U.S. 1066 (1987), the Ninth Circuit rejected an Establishment Clause challenge to the lease of space in a municipal airport stating that, while the religious organization did “receive some benefit,” there was no effect of advancing religion because “the benefits of rental space at the airport [were] generally available” to a variety of groups.  The government did not endorse the Christian Scientists, since, if it did, it would also be “endorsing the business and labor practices of the domestic airlines, the politics and policies of the foreign governments that own airlines, the consumption of alcohol and sourdough bread, . . . the reading of Penthouse magazine” and the views of all the other organizations leasing space at the airport. 

These same principles apply to Scouting’s right to lease property on the same terms as others.

●   Evans v. City of Berkeley, review granted (previously published at 127 Cal. Rptr. 2d 696, 104 Cal. App. 4th 1 (Cal. Ct. App. 2002)) The City of Berkeley has a program of allowing free berthing space in the City marina to nonprofits engaged in projects beneficial to the community.  The Berkeley Sea Scouts, which includes many disadvantaged youth, had been granted free berthing space for 60 years.  Other groups enjoying free space include a club providing a women’s sailing clinic, an association of disabled sailors, and an organization operating a youth program.  The City applied the marina’s nondiscrimination ordinance only to Boy Scouts’ policy with respect to open homosexuals, even though the ordinance also covers sex, age, and disability discrimination.  The case is now pending before the California Supreme Court.

●   Barnes-Wallace v. Boy Scouts of America, 275 F. Supp. 2d 1259 (S.D. Cal. 2003) The City of San Diego has established policies for leasing City property to nonprofit groups which benefit the community.  Other lessees include the Girl Scouts, the Salvation Army, a Jewish Community Center, and Presbyterian churches, among dozens of other community organizations.  Still other groups receive money subsidies from the City, although Boy Scouts does not.  Nevertheless, the District Court held that the lease to Boy Scouts violated the Establishment Clause because the City did not seek non-religious bidders to compete for the lease.  The effect of the decision is to discriminate against Boy Scouts for believing in God.

Access to Schools

The Boy Scouts of America Equal Access Act, 20 U.S.C. § 7905 (2003), was passed because “[a]ll over the country the Boy Scouts are under attack and being thrown out of public facilities that are open to other similarly situated groups.  From Florida to California, the Boy Scouts are being removed, not because they support an illegal right, but as retribution for the Supreme Court’s ruling in the Boy Scouts of America versus Dale.”  147 Cong. Rec. H2618 (daily ed. May 23, 2001) (statement of Rep. Hilleary); see 147 Cong. Rec. S6249 (daily ed. June 14, 2001) (statement of Sen. Helms); 147 Cong. Rec. S4867 (daily ed. May 14, 2001) (memorandum from Congressional Research Service on actions by school districts against Boy Scouts); 147 Cong. Rec. S6256 (daily ed. June 14, 2001) (examples of Boy Scouts being discriminated against).

The Boy Scouts of America Equal Access Act provides that,

“no public elementary school, public secondary school, local educational agency, or State educational agency that has a designated open forum or a limited public forum and that receives funds made available through the Department shall deny equal access or a fair opportunity to meet to, or discriminate against, any group officially affiliated with the Boy Scouts of America, or any other youth group listed in title 36 of the United States Code (as a patriotic society), that wishes to conduct a meeting within that designated open forum or limited public forum, including denying such access or opportunity or discriminating for reasons based on the membership or leadership criteria or oath of allegiance to God and country of the Boy Scouts of America or of the youth group listed in title 36 of the United States Code (as a patriotic society).”

The Secretary of Education enforces the statute through rules and orders.  “If the public school or agency does not comply with the rules or orders, then . . . no funds made available through the Department shall be provided to a school that fails to comply with such rules or orders or to any agency or school served by an agency that fails to comply with such rules or orders.”

Apart from the Boy Scouts of America Equal Access Act, viewpoint discrimination has most often been addressed with respect to religious groups seeking the same access to public facilities as other community groups.  In several key cases the United States Supreme Court has held that it is viewpoint discrimination for a public entity to allow moral issues to be discussed, but not allow them to be discussed from a religious perspective.

In Good News Club v. Milford Central School,533 U.S. 98 (2001), a Christian children’s club sued a public school, alleging that the school’s refusal to allow club to use school facilities violated free speech rights under the First Amendment.  The District Court granted summary judgment in favor of the school, and, on appeal, the Second Circuit Court of Appeals affirmed.  The United States Supreme Court held that the government violates the First Amendment when it excludes “speech discussing otherwise permissible subjects” because of the viewpoint of the speaker.  The school’s exclusion of the club from meeting after hours at school based on its religious nature was unconstitutional viewpoint discrimination.

Similarly, in Lamb’s Chapel v. Center Moriches Union Free School District,508 U.S. 384 (1993), a church sued a public school district, alleging that the district’s refusal to allow the church to use school facilities for a film series on family values from a religious perspective violated its First Amendment rights.  The District Court granted summary judgment to the school district, and, on appeal, the Second Circuit Court of Appeals affirmed.  The United States Supreme Court held that refusal to rent school building for “otherwise permissible” film series because of its religious viewpoint violated the principle that “forbids the government to regulate speech in ways that favor some viewpoints or ideas at the expense of others.”  As a result, the school district violated the free speech clause of First Amendment by denying the church access to school premises simply because film presented a religious standpoint.

These same principles apply to discrimination against Scouting based on its “duty to God” and “morally straight” values.

●   Sherman v. Community Consolidated School District 21 of Wheeling Township, 8 F.3d 1160 (7th Cir. 1993), cert. denied, 511 U.S. 1110 (1994)
An atheist parent and son sued the school district alleging that it violated the Establishment Clause by allowing the Boy Scouts to use an elementary school’s facilities.  The District Court and the Seventh Circuit Court of Appeals held that the school district did not violate Establishment Clause by allowing Boy Scouts to distribute literature during school hours, to hang posters on school grounds, and to meet in school rooms after-hours. Boy Scouts’ policies could not be attributed to the school district.

●   Boy Scouts of America v. Till, 136 F. Supp. 2d 1295, 1308 (S.D. Fla. 2001) 
The Broward County School Board excluded Boy Scouts from using school facilities after hours, as many community groups had for years.  After Dale, the School Board sought to exclude Boy Scouts as violating a Board nondiscrimination policy applying to age, race, gender, religion, and sexual orientation.  No other groups—which included churches, a youth orchestra, a service agency for senior citizens, and an African-American sorority—were excluded.  The District Court held that the School Board engaged in viewpoint discrimination against Boy Scouts’ views, and granted a preliminary injunction.  The School Board ultimately agreed to a permanent injunction and agreed to pay Boy Scouts’ attorneys fees.

●   Scalise v. Boy Scouts of America, No. 244883 (Mich. Ct. App.)
An atheist parent of a child in Mt. Pleasant Public Schools in Michigan brought suit challenging the school district’s policy of allowing Boy Scouts equal access to school meeting space and literature distribution systems, alleging that this policy constitutes religious discrimination under the Michigan Constitution and the Elliott-Larsen Civil Rights Act.  The trial court dismissed all claims against the Boy Scouts and the school board.  Mr. Scalise’s appeal is pending before the Michigan Court of Appeals.


Charitable Campaigns

One type of government forum is a campaign operated by a state or local government to allow its employees to make personal charitable donations.  

In Cornelius v. NAACP Legal Defense & Educational Fund, Inc., 473 U.S. 788 (1985), the Supreme Court held that eligibility to participate in a government employee charitable campaign must be determined on a viewpoint neutral basis.

While not a charitable campaign case, Rosenberger v. Rector & Visitors of University of Virginia, 515 U.S. 819 (1995) is illustrative because it involved state outlay of funds, as opposed to mere access to a state forum.  In Rosenberger, a public university engaged in unconstitutional viewpoint discrimination when it denied funding to an otherwise eligible student publication on the basis of the publication’s religious editorial viewpoint.  The Court held that when the government targets not subject matter, but particular views taken by speakers on a subject, the violation of the First Amendment is blatant.  “The government must abstain from regulating speech when the specific motivating ideology or the opinion or perspective of the speaker is the rationale for the restriction.” 

●   Boy Scouts of America v. Wyman, 335 F.3d 80 (2d Cir. 2003)
The State of Connecticut excluded Boy Scouts from a charitable campaign, in which 900 groups of all different kinds participate, on the grounds that including Boy Scouts requires the State to discriminate on the basis of sexual orientation.  The State has admitted that its sole reason for excluding Boy Scouts is Boy Scouts’ constitutionally protected views and leadership policies with respect to homosexuals.  Boy Scout councils had participated in the campaign for 30 years.  The State continues to allow a wide variety of other groups to participate which obviously “discriminate” in membership and services to the same extent as Boy Scouts are being seen as doing so, including gay and lesbian groups and many organizations which limit services to a particular sex, ethnicity, age group or sexual orientation, all of which are similarly covered by State nondiscrimination laws.  (See Directory of Charitable Organizations.)

The Second Circuit Court of Appeals upheld the decision of the State of Connecticut.  The Second Circuit recognized that the Boy Scouts’ policies were “constitutionally protected” under Boy Scouts of America v. Dale.  The court nonetheless upheld removal of the Scouts from the charity list on the ground that Connecticut did not “require” the Boy Scouts to change their views, but merely required the Boy Scouts to “pay[] a price” for “exercising its First Amendment rights.”

The Second Circuit’s decision threatens First Amendment freedoms of speech and association and is part of a growing pattern of state agency actions and lower court decisions that have excluded Boy Scouts, as well as traditional religious groups, from government facilities and programs because of their views and membership standards on matters of morality, religious belief, and sexual conduct.  The Second Circuit’s decision also is in direct conflict with Supreme Court precedent such as Boy Scouts of America v. Dale and Rosenberger v. Rector & Visitors of University of Virginia.

This case presents a First Amendment issue of national importance:  The government cannot exclude an otherwise-eligible organization from participating in a government program because of membership policies that preserve the organization’s values and form the organization’s expressive identity.  There are 150 charitable campaigns run by states, public universities, and local governments nationwide, and more than 140,000 charities, including Boy Scouts, participate.  The Supreme Court’s decision could have a profound effect on values-based and faith-based organizations that participate in government programs across the country.