The 2d Cir does not disagree with the equal access point, but rather says that the School Dist is prohibiting an activity, not expression per se. In fact, prayer, religious instruction, expression of devotion to God, and the singing of hymns are not prohibited. What is excluded is full-scale worship services with all that entails. Worship services are not "student groups", but rather collections of adults and children. If a student group engaging in proselytizing activities a la Rosenberger were the equivalent of a worship service, Eugene might be correct. The 2d Cir. is saying that there is no such equivalence here. On the confusion point, I would think that you are more likely to have confusion about government endorsement when a school is transformed into a church for a full day each week than when you have a short prayer announced at graduation. Yet, the latter is unconstitutional under Lee v. Weisman. The disclaimer proposal is insufficient to forestall children and everyone else, actually, from thinking that P.S. 151 is in fact Evangelical, or Buddhist, or whatever, when it is the worship home for a congregation. I don't know if you have noticed, but it is a fact that politicians routinely favor their own religion, so it is perfectly reasonable to conclude that a school board opening the door to a particular religious group for their most important religious activity, worship, is an endorsement of that religious group. And the school board's rejection of a particular religious group's application, even if based on neutral principles, also would raise serious questions about endorsement. Thus, the prohibition is necessary to avoid an Establishment Clause violation. Marci In a message dated 8/15/2011 12:40:58 P.M. Eastern Daylight Time, vol...@law.ucla.edu writes:
But this possibility that a few people might be confused, even when the government makes clear that all it’s offering is equal access – just like the equal access offered to religious groups in many contexts, such as tax exemptions, the use of GI Bill grants, and so on – doesn’t strike me as reason enough to reject equal access.
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