Public Forum Doctrine and the Perils of Categorical Thinking: Lessons from Lamb's Chapel

Authors

Rosemary C. Salomone, St. John's University School of LawFollow

Document Type

Commentary

Publication Title

New Mexico Law Review

Publication Date

Winter 1994

Volume

24

First Page

1

Abstract

(Excerpt)

In recent years, the intersection of the Religion and Speech Clauses of the First Amendment has become increasingly controversial particularly in the context of public schooling. Religious group meetings, the distribution of religious literature, the discussion of religious themes, and the recitation of prayers at graduation ceremonies have all forced the courts to weigh and re-weigh the right to individual speech against the responsibility of the state to stay within the bounds of Establishment Clause doctrine. Several legal and political factors have fueled this debate. Although the Supreme Court has reaffirmed on several occasions the unconstitutionality of organized prayer in the schools, the question of other forms of religious speech remains open. In addition, the Court's shift since the early 1980s toward greater religious accommodation, together with a nationwide swing toward political conservatism, have created a more comfortable climate in which both students and non-students have asserted the right to use public school facilities for the exercise of religious speech. Passionate religion and speech claims have generated local political controversy, defied administrative resolution, and have found their way into the federal courts.

In addressing these religion and speech claims, courts have wound through a maze of First Amendment doctrine over the past two decades against the backdrop of a Supreme Court in ideological flux. The Religion and Free Speech Clauses have generated sharp interpretive disagreements among Supreme Court Justices. It is not surprising, therefore, that the question of religious speech has proven particularly problematic, setting the First Amendment on an internal collision course. During the 1992 Supreme Court term, the case of Lamb's Chapel v. Center Moriches Union Free School District challenged the Justices to develop coherent theories of both Establishment Clause and Free Speech interpretation. Unfortunately, the Court failed on both counts.

In Lamb's Chapel, a unanimous Supreme Court upheld the right of an outside religious group to use public school facilities after school hours where school officials had previously granted access to similar speakers and subjects. From a doctrinal perspective, the Court achieved consensus at the cost of specificity and clarity. Lamb's Chapel, in fact, may be remembered better for what the Court failed to say than for what the opinion actually said. The thin reasoning of Justice White's majority opinion, an unsatisfactory attempt to finesse the Establishment Clause issue, and the analytic leaps and gaps in the Court's discussion of the Free Speech Clause all combine in a troublesome decision that generates more questions than answers.

This commentary focuses on the speech aspects of Lamb's Chapel. The decision appears, at first glance, to represent a victory for religious speech but that victory is narrowed by the Court's reliance on the public forum doctrine, a doctrine which utilizes a categorical approach that carries broad implications for religious and non-religious expressive rights in schools. In addition, the commentary addresses the development of the public forum doctrine through a discussion of modern case law and the shortcomings of public forum analysis as viewed through the lens of Lamb's Chapel and other recent school-related cases. Finally, an alternative theoretical framework at the end of this commentary builds on a contextual approach that appears to have gained increasing support among the Supreme Court Justices.

Comments

Available at: https://digitalrepository.unm.edu/nmlr/vol24/iss1/3/