Hastings Law Journal
In Good News Club v. Milford, the Court left unanswered whether, in a limited public forum, a restriction solely on worship is constitutional. This issue implicates a number of smaller issues, including whether there is an intelligible distinction between worship and other manners of religious speech. Even if there is an intelligible distinction, is it the role of the courts to define it? And if so, what is the appropriate method of doing so?
This Note argues that a restriction solely on worship is constitutional in the limited public forum. Further, there is an intelligible distinction between worship and other manners of religious speech, which the courts can identify without running afoul of the First Amendment. Lastly, this Note proposes a two-part test with an abuse of discretion standard by which courts should review the decisions of local officials.
The Establishment Clause suggests that the courts must be able to enforce an otherwise valid restriction of worship. Without this ability, the courts would have to defer to the determinations of the religious groups themselves as to whether or not an activity is worship and this would be a clear preference for religion over irreligion. The proposed test acknowledges that it is not the role of the courts to define worship specifically, as that could violate the First Amendment. But it also acknowledges that there are certain activities that could be viewed as worship or nonworship with equal justification. For this reason, the worship determination should be made at the local level, where it is most likely to reflect the will of the community.
Joshua B. Marker,
Worship Test: Balancing the Religion Clauses in the Limited Public Forum,
60 Hastings L.J. 673
Available at: https://repository.uchastings.edu/hastings_law_journal/vol60/iss3/5