Preaching from the State's Podium: What Speech is Proselytizing Prohibited by the Establishment Clause?

Brigham Young University Journal of Public Law

Volume 21

Issue 1 Article 4

3-1-2007

Preaching from the State's Podium: What Speech is

Proselytizing Prohibited by the Establishment

Clause?

Christian M. Keiner

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Christian M. Keiner, Preaching om the State's Podium: What Speech is Proselytizing Prohibited by the Establishment Clause?, 21 BYU J.

Pub. L. 85 (2007).

Available at: h<ps://digitalcommons.law.byu.edu/jpl/vol21/iss1/4

Preaching from the State’s Podium: What Speech is

Proselytizing Prohibited by the Establishment Clause?

Christian M. Keiner*

INTRODUCTION

Public schools, like other public institutions, continue to wrestle with

difficult problems posed by potential proselytizing in publicly-sponsored

activities.

The fundamental First Amendment question is whether

particular religious-oriented speech or conduct is protected by the Free

Speech Clause or prohibited by the Establishment Clause.

Proselytizing

is unquestionably expressive activity. Be it verbal or written, a

proselytizing religious message would be protected First Amendment

speech if the religious content did not raise Establishment Clause

concerns.

Indeed, the position has been successfully argued in several

federal court cases that religious expression is precisely that form of

speech the “viewpoint discrimination” doctrine, set forth in Rosenberger

v. Rector

and its progeny, was designed to protect. As this article will

show, the term “proselytizing” weaves its way through U.S. Supreme

* J.D. with Distinction, University of Pacific, McGeorge School of Law, Order of the Coif;

B.A. with High Honors, University of California, Santa Barbara. The author is Of Counsel to

Kronick, Moskovitz, Tiedemann & Girard in Sacramento and represents California community

college districts, school districts, and county offices of education. The author gratefully

acknowledges the editorial and research assistance of Chelsea R. Olson, J.D. with Distinction,

University of Pacific, McGeorge School of Law; B.A., University of California, Santa Barbara.

1. See Brief of National School Boards Ass’n, et al. as Amici Curiae Supporting Neither

Party at 8 n.5, McCreary County, Ky. v. ACLU, 125 S. Ct. 2722 (2005) (No. 03-1693), for a

comprehensive description of recent church-state conflicts in public schools. A non-school example

is the ongoing difficulties with regulating proselytizing at the U.S. Air Force Academy. See, e.g.,

Mark Mazzetti, Air Force Chaplain Policy Cited in Faith Bias Case: Guidelines That May Have

Encouraged Christian Evangelizing Were Rescinded in August According to a Lawyer for the

Service, L.A. T

IMES, Oct. 11, 2005 at A-17.

2. The author has defended public schools in Establishment Clause cases including Cole v.

Oroville Union High School District, 228 F.3d 1092 (9th Cir. 2000); PLANS, Inc. v. Sacramento

City Unified School District, 319 F.3d 504 (9th Cir. 2003); and Sands v. Morongo Unified School

District, 809 P.2d 809 (Cal. 1991).

3. This article only analyzes proselytizing in State-sponsored or State-controlled activities.

Non-government-sponsored proselytizing or evangelical activity by private individuals or churches

does not typically raise Establishment Clause concerns.

4. See Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819, 829 (1995) (“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.”).

86 BYU JOURNAL OF PUBLIC LAW [Volume 21

Court opinions that analyze both Establishment Clause prohibitions and

Free Speech Clause precluded “viewpoint discrimination,” without at

any point being adequately defined as an applicable legal standard or

test.

Justice Kennedy, in his minority concurrence in County of

Allegheny v. ACLU suggested “proselytizing” be used as the primary

Establishment Clause test

but, not gaining support from his fellow

justices, developed a “coercion” test.

Most recently, in the 2005 term

Ten Commandments cases, “proselytizing” appeared to evolve into a

question of fact, or mixed question of law and fact, rather than a

conclusion of law.

The Ninth Circuit Court of Appeals, relying on Lee v. Weisman

and

Santa Fe v. Doe,

adopted a “no proselytizing” Establishment Clause

rule in two seminal cases (Cole v. Oroville Union High School District

and Lassonde v. Pleasanton Unified School District

), at least with

respect to California public school graduation ceremonies.

Other federal

circuits, while not so definite, have stated in dicta that proselytizing in

State-sponsored or State-controlled activities is beyond First Amendment

Free Speech clause protection.

This article will analyze dilemmas posed by proselytizing expression

primarily in public school-sponsored activities and will (1) discuss the

evolving use of the term “proselytizing” in U.S. Supreme Court opinions

culminating in the 2005 term Ten Commandments cases and while doing

so, briefly set forth key High Court decisions involving either

Establishment Clause prohibited speech or Free Speech Clause protected

speech; (2) analyze how the Ninth Circuit interpreted these High Court

Establishment Clause cases to adopt a “no proselytizing” rule, and reject

the applicability of the “viewpoint discrimination” theory (at least in high

5. See discussion infra Part II.

6. County of Allegheny v. ACLU, Greater Pittsburgh Chapter, 492 U.S. 573, 659–64

(1989) (Kennedy, J. concurring).

7. In Lee v. Weisman, 505 U.S. 577, 588 (1992) Justice Kennedy articulated a new

formulation of the Establishment Clause test known as the “coercion test,” determining that Daniel

Weisman and his daughter, middle school graduate, Deborah Weisman were victims of

impermissible psychological coercion. Justice Kennedy stated that such coercion exists where school

officials conduct formal religious observance at an important ceremonial event creating an

environment where “subtle coercive pressures exist and where the student ha[s] no real alternative

which would . . . allow[] her to avoid [either] the fact or appearance of participation” in the religious

component of the graduation ceremony. Id.

8. See generally McCreary County, Ky. v. ACLU, 125 S. Ct 2722 (2005); Van Orden v.

Perry, 125 S. Ct. 2854 (2005).

9. Lee, 505 U.S. 577.

10. Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290 (2000).

11. Cole v. Oroville Union High Sch. Dist., 228 F.3d 1092 (9th Cir. 2000).

12. Lassonde v. Pleasanton Unified Sch. Dist., 320 F.3d 979 (9th Cir. 2003).

13. See discussion infra Part IV.A.

83] WHAT SPEECH IS PROSELYTIZING? 87

school graduation ceremonies); (3) review how other federal circuits

have approached such speech situations and attempted to define

“proselytizing”; and (4) propose a more certain legal definition that could

both mitigate the potential for impinging on free speech rights and avoid

violation of the Establishment Clause. Although this article’s focus will

be on public schools, the cases and principles discussed are applicable to

other government institutions.

Finally, this article will suggest that an ethic of mutual tolerance

might serve to resolve practical issues associated with proposed

proselytizing in State-sponsored activities.

II.

THE SUPREME COURT AND PROSELYTIZING

As set forth below, early U.S. Supreme Court opinions recognized

the bedrock concept of “no proselytizing” in publicly-sponsored

activities and emphasized that any proselytizing bearing the imprimatur

of the State violates the Establishment Clause. However, the concept that

government-sponsored proselytizing breaches the Establishment Clause

appears so central to the judicial understanding that individual justices

never defined the term “proselytize,” much less provided any workable

legal test for determining precisely what qualifies as prohibited

proselytizing. Despite this definitional lapse, the concept of proselytizing

lies at the heart of opinions addressing both Free Speech Clause

prohibited “viewpoint discrimination” and Establishment Clause

prohibited publicly-sponsored “religious exercise.” The final irony is that

the “no proselytizing” concept has been acknowledged and recognized

by justices conventionally deemed liberal, conservative, and moderate

alike.

A. Proselytizing and the Establishment Clause

Proselytizing was first addressed in the public school context in

Justice Robert H. Jackson’s 1948 concurrence in McCollum v. Board of

Education.

McCollum reversed a state court opinion upholding

religious instruction in public schools.

In that case, religious classes

were held in regular classrooms during the school day.

Though students

were not required to attend and could go elsewhere in the building for

continued “secular instruction,” the Court determined that merely

14. Ill. ex rel. McCollum v. Bd. of Educ., 333 U.S. 203, 235–36 (1948) (Jackson, J.,

concurring).

15. Id. at 212 (majority opinion).

16. Id. at 205.

88 BYU JOURNAL OF PUBLIC LAW [Volume 21

allowing the instruction to take place infringed upon the Establishment

Clause.

Justice Jackson, in his concurrence, stated, “[we] can at all

times . . . forbid forthright proselytizing in the schools” and that “[w]hen

instruction turns to proselytizing and imparting knowledge becomes

evangelism is, except in the crudest cases, a subtle inquiry.”

In this

early opinion, the Justice acknowledged that while government-

sponsored proselytizing is an Establishment Clause violation, there is a

subtle inquiry involved in determining which expressive conduct

qualifies as proselytizing.

Justice Douglas also discussed proselytizing in his 1962 concurrence

in Engel v. Vitale.

The Court in Engel held that New York’s

requirement of a daily classroom invocation recounting God’s blessings

constituted an unconstitutional “religious activity.”

The Court

determined that though student participation was not mandatory, use of

the public school system to encourage recitation of such prayer was

“wholly inconsistent” with the Establishment Clause.

In his

concurrence, Justice Douglas analyzed how Engel differed from

McCollum and determined that though “New York’s prayer is of a

character that does not involve any element of proselytizing as [was the

case in] McCollum,” it was nonetheless a religious exercise.

Thus, in

Justice Douglas’s view, religious exercises were prohibited even if they

did not rise to the level of proselytizing.

Justice Douglas reiterated his version of the “no proselytizing” rule

in another concurrence in 1963. In School District v. Schempp, the High

Court invalidated on Establishment Clause grounds a school district

policy requiring a Bible reading before regular instruction began each

day.

Justice Douglas, again in concurrence, focused on the problem of

using public money to support proselytizing in a public institution:

The most effective way to establish any institution is to finance it; and

this truth is reflected in the appeals by church groups for public funds

to finance their religious schools. Financing a church either in its

strictly religious activities or in its other activities is equally

unconstitutional, as I understand the Establishment Clause. Budgets for

one activity may be technically separable from budgets for others. But

17. Id. at 209–10.

18. Id. at 235–36 (Jackson, J., concurring).

19. 370 U.S. 421 (1962).

20. Id. at 424.

21. Id. at 424, 430.

22. Id. at 439 (Douglas, J., concurring).

23. 374 U.S. 203, 211, 224–25 (1963).

83] WHAT SPEECH IS PROSELYTIZING? 89

the institution is an inseparable whole, a living organism, which is

strengthened in proselytizing when it is strengthened in any department

by contributions from other than its own members.

In 1971, Justice Douglas returned to his proselytizing analysis, this

time joined by Justice Hugo Black, in the case that set forth the infamous

“Lemon test.”

In Lemon v. Kurtzman, the majority invalidated on

Establishment Clause grounds two state statutes, one from Rhode Island

and one from Pennsylvania, that allowed direct state aid, or indirect

beneficial aid, to parochial schools.

In concurrence Justice Douglas

stated

“We must . . . be sure that the end result—the effect—is not an

excessive government entanglement with religion.”

There is in my view such an entanglement here. The surveillance or

supervision of the States needed to police grants involved in these three

cases, if performed, puts a public investigator in every classroom and

entails a pervasive monitoring of these church agencies by the secular

authorities. Yet if that surveillance or supervision does not occur the

zeal of religious proselytizers promises to carry the day and make a

shambles of the Establishment Clause.

Justice Douglas’s view was that the Establishment Clause forbids the

government from allowing “religious proselytizers” to “carry the day” at

taxpayer expense where there is an indication the proselytizing may carry

the imprimatur of the government.

Although Justices Jackson and Douglas recited proselytizing

analyses in these early concurrences, it was not until Marsh v. Chambers

in 1983 that a Court majority alluded to a nascent “no proselytizing”

rule.

In Marsh, the Court upheld the historical practice of prayer before

a Nebraska legislative session.

One reason the Court gave for

24. Id. at 229 (footnotes omitted).

25. See Lemon v. Kurtzman, 403 U.S. 602, 612–13 (1971) (requiring that in order to be

constitutional (1) “the statute must have a secular legislative purpose”; (2) “[the statute’s] principal

or primary effect must be one that neither advances or inhibits religion”; and (3) “the statute must

not foster an ‘excessive government entanglement with religion’”) (quoting Walz v. Tax Comm’n,

397 U.S. 664, 674 (1970)). The Lemon test has subsequently had detractors and defenders on the

High Court and though it has yet to be overruled, it is not always utilized by the Court in its analysis.

26. Id. at 606–07.

27. Id. at 627 (Douglas, J., concurring) (quoting Walz, 397 U.S. at 674).

28. Id.

29. 463 U.S. 783 (1983).

30. Id. at 784–785, 795.

90 BYU JOURNAL OF PUBLIC LAW [Volume 21

upholding these prayers as constitutional was the non-proselytizing

nature of historical prayers when the First Amendment was adopted.

The Court stated that “the delegates did not consider opening prayers as a

proselytizing activity or as symbolically placing the government’s

‘official seal of approval on one religious view.’”

Further, the Court

added, “[t]he content of the prayer is not of concern to judges where, as

here, there is no indication that the prayer opportunity has been exploited

to proselytize or advance any one, or to disparage any other, faith or

belief.”

Here, the majority, in a frequently quoted statement, makes it

clear that if the legislative opportunity for prayer had been exploited to

proselytize, the content of the prayer would be of concern to the Court

and the practice a potential violation of the Establishment Clause.

Next, in Texas Monthly, Inc. v. Bullock, a publisher of a nonreligious

periodical brought suit challenging a Texas statute that provided a sales

tax exemption for religious periodicals and not for nonreligious

publications.

The Court held that the statute violated the Establishment

Clause and the majority opinion by Justice William Brennan states

The core notion animating the requirement that a statute possess “a

secular legislative purpose” and that “its principal or primary effect . . .

be one that neither advances nor inhibits religion,” is not only that

government may not be overtly hostile to religion but also that it may

not place its prestige, coercive authority, or resources behind a single

religious faith or behind religious belief in general, compelling

nonadherents to support the practices or proselytizing of favored

religious organizations and conveying the message that those who do

not contribute gladly are less than full members of the community.

Here the Court, echoing Justice Douglas’s earlier position indicates that

not only is government proselytizing an Establishment Clause violation,

but so is any government support, using tax-payer dollars, of

proselytizing done by private individuals which might have an impact on

non-adherents.

In County of Allegheny v. ACLU, the Court’s use of proselytizing as

31. Id. at 792.

32. Id. (quoting Chambers v. Marsh, 675 F.2d 228, 234 (8th Cir. 1982)).

33. Id. at 794–95.

34. In Hinrichs v. Bosma, 440 F.3d 393, 398 (7th Cir. 2006), the Seventh Circuit recently

cited Marsh when addressing whether the speaker of the Indiana House of Representatives could

allow the opening of legislative sessions with sectarian prayer. The Seventh Circuit stated that

Marsh precludes “sectarian prayer.” Id. at 399; See also discussion infra Part V.A.

35. 489 U.S. 1, 5–6 (1989).

36. Id. at 9 (citation omitted).

83] WHAT SPEECH IS PROSELYTIZING? 91

an Establishment Clause rule fell out of majority acceptance and seemed

to drive a wedge between the emerging analytic approaches taken by

Justices Anthony Kennedy (proselytizing as bottom line) and Sandra Day

O’Connor (endorsement test).

In that case, the High Court determined

that a crèche inside a county courthouse violated the Establishment

Clause, while menorahs outside city and county buildings did not.

his swing opinion, concurring in part and dissenting in part, Justice

Kennedy argued that both the crèche and the menorah withstood

constitutional scrutiny.

Justice Kennedy, joined by Chief Justice

William Rehnquist and Justices Byron White and Antonin Scalia argued

that the High Court should follow the precedent set by Marsh and allow

the religious symbols because they were “non-proselytizing.”

Further,

the Kennedy opinion, which repudiated Justice O’Connor’s emerging

“endorsement test” in favor of a proselytizing test, would determine

whether government practice violated the Establishment Clause by

asking whether the activity “would place the government’s weight

behind an obvious effort to proselytize on behalf of a particular

religion.”

Justice Kennedy argued that both menorah and crèche were

constitutional because “[t]here is no realistic risk that the crèche and the

menorah represent an effort to proselytize or are otherwise the first step

down the road to an establishment of religion.”

However, the majority

of the Court joined instead an opinion by Justice Harry Blackmun which

vehemently rejected Justice Kennedy’s proposed analysis stating that all

the suggested proselytizing test proposed to do was “to lower

considerably the level of scrutiny in Establishment Clause cases.”

Justice Blackmun’s majority opinion indicated once again, that at the

very least, proselytizing was a line that could not be crossed in a State-

sponsored activity.

In Lee v. Weisman, Justice Kennedy wrote the majority opinion, and

shifted from the “no-proselytizing” analysis he utilized in County of

Allegheny to a coercion-based approach.

Justice Kennedy determined

that participation in graduation prayer led by clergy was coerced

participation in a “religious exercise.”

This “religious exercise” strand

would resurface in Santa Fe v. Doe, and subsequently in the Ninth

37. 492 U.S. 573 (1989).

38. Id. at 621.

39. Id. at 667 (Kennedy, J., concurring in judgment in part and dissenting in part).

40. Id. at 664, 665 n.4.

41. Id. at 661.

42. Id. at 664.

43. Id. at 609 (majority opinion).

44. 505 U.S. 577 (1992).

45. Id. at 588.

92 BYU JOURNAL OF PUBLIC LAW [Volume 21

Circuit opinions in Cole and Lassonde. Ironically, Justice Scalia in his

vehement dissent, without using the term “proselytizing,” invoked the

same bottom-line standard, stating

[O]ur constitutional tradition, from the Declaration of Independence

and the first inaugural address of Washington, quoted earlier, down to

the present day, has, with a few aberrations, ruled out of order

government-sponsored endorsement of religion—even when no legal

coercion is present, and indeed even when no ersatz, “peer-pressure”

psycho-coercion is present—where the endorsement is sectarian, in the

sense of specifying details upon which men and women who believe in

a benevolent, omnipotent Creator and Ruler of the world are known to

differ (for example, the divinity of Christ).

In the next key school student prayer case, Santa Fe v. Doe, the

Court addressed the issue of student-led prayer prior to football games.

In ruling school prayer was an Establishment Clause violation, the

majority opinion, penned by Justice Stevens, took note of the election

procedures that allowed students first to decide if they wanted a student

to deliver a prayer and then allowed them to select the student who

would give the prayer.

The Court majority further acknowledged that

the series of school district policies and procedures at issue required that

any such prayers must be “‘non-proselytizing’ invocations and

benedictions for the purpose of ‘solemnizing’” the occasion.

Despite

these requirements, the Court majority, applying the same principles set

forth in Lee, determined that the prayers were unconstitutional.

Thus, pursuant to Lee and Santa Fe, even non-proselytizing prayer

was held impermissible, which indicates that any school policy relating

to student conduct which might qualify as school-sponsored religious

activity has little chance of withstanding constitutional scrutiny unless it

is, at the very minimum, non-proselytizing. Further, returning to

Establishment Clause principles, the Court’s opinion in Santa Fe

combined the “bottom-line” no-proselytizing rule with Justice

O’Connor’s endorsement test, stressing that school sponsorship of this

proselytizing message was impermissible because it sent the ancillary

46. Id. at 641 (citations omitted). This quote identifies Scalia’s “sectarian” or religiously

neutral approach. If the State action is neutral towards religion and nonsectarian then, under this

approach, it should be upheld.

47. Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290 (2000).

48. Id. at 297–98.

49. Id. at 296-97.

50. Id. at 301–02, 317.

83] WHAT SPEECH IS PROSELYTIZING? 93

message to members of the audience who are non-adherents “that they

are outsiders, not full members of the political community, and an

accompanying message to adherents that they are insiders, favored

members of the political community.”

B. Proselytizing and the Free Speech Clause

In contrast to this line of Establishment Clause opinions stands the

Free Speech Clause “viewpoint discrimination” cases, where the Court

majority ignored proselytizing to affirm the constitutionality of the

expression. Ironically, this shift led the liberal wing of the Court to focus

on the neglected “no proselytizing” principle in dissent.

For example, in Capital Square Review and Advisory Board v.

Pinette, Justice Stevens’s dissent turned to the proselytizing principle

after the majority held that the State did not violate the Establishment

Clause by allowing a private party (the Ku Klux Klan) to display an

unattended cross on the grounds of the state capitol.

Justice Stevens

argued that

The battle over the Klan cross underscores the power of such

symbolism. The menorah prompted the Klan to seek permission to

erect an anti-Semitic symbol, which in turn not only prompted

vandalism but also motivated other sects to seek permission to place

their own symbols in the square. These facts illustrate the potential for

insidious entanglement that flows from state-endorsed proselytizing.

There is no reason to believe that a menorah placed in front of a

synagogue would have motivated any reaction from the Klan, or that a

Klan cross placed on a Klansman’s front lawn would have produced the

same reaction as one that enjoyed the apparent imprimatur of the

State . . . .

Next, in the key case of Rosenberger v. Rector and Visitors of the

University of Virginia, the Court majority determined that a university

51. Id. at 309-10 (citing Lynch v. Donnelly, 465 U.S. 668, 688 (1984)).

52. 515 U.S. 753 (1995). In that case the Ku Klux Klan (“KKK”) brought suit seeking an

injunction requiring the review board to issue a permit allowing the KKK to place a Latin cross in a

plaza next to the state capitol. Id. at 758–59. The District Court granted the injunction and the

Supreme Court held that issuing the permit did not violate the Establishment Clause. Id. at 759, 770.

Capital Square is a state-owned plaza that has been used for public gatherings, speeches, and

festivals over the years. And, the Ohio Administrative Code makes this space freely available for use

by the public. The Board has also permitted a variety of unattended displays such as a state-

sponsored tree during Christmas and a privately sponsored menorah during Chanukah. Id. at 757–58.

53. Id. at 811 (Stevens, J., dissenting).

94 BYU JOURNAL OF PUBLIC LAW [Volume 21

engaged in impermissible “viewpoint discrimination” when it refused to

pay the printing costs for a Christian student group that published a

newspaper entitled “Wide Awake” out of a fund specifically created by

the university to pay such costs for student publications.

Rosenberger, as a practical matter, the Free Speech Clause trumped the

Establishment Clause.

Again the dissent authored by Justice Souter and

joined by Justices Stevens, Ginsburg, and Breyer returned to a “no-

proselytizing” rule arguing that “[t]he Court, accordingly, has never

before upheld direct state funding of the sort of proselytizing published

in Wide Awake and, in fact, has categorically condemned state programs

directly aiding religious activity.”

Here the dissent argued that

application of the “no proselytizing” rule is particularly obvious where

the magazine is blatantly proselytizing. Yet, the Rosenberger majority

opinion ignored the dissenter’s focus upon proselytizing, holding there

had been no violation of the Establishment Clause, and that the

University engaged in “viewpoint discrimination” by not funding the

magazine.

The High Court in Good News Club v. Milford Central School next

held that a school’s refusal to allow a Christian club to use school

facilities after school hours was unconstitutional “viewpoint

discrimination” that was not necessary to avoid violating the

Establishment Clause.

Once again, the Free Speech Clause trumped the

Establishment Clause. In dissent, Justice Stevens returned to the “subtle

inquiry” Justices Jackson and Douglas had struggled with as early as

1948, and identified three different categories of speech: “First, there is

religious speech that is simply speech about a particular topic. . . .

Second, there is religious speech that amounts to worship, or its

equivalent. . . . Third, there is an intermediate category that is aimed

principally at proselytizing or inculcating belief in a particular religious

faith.”

According to Justice Stevens, the type of proselytizing activities

proposed by Good News Club fell into the third category of prohibited

proselytizing speech.

The justice wrote that “[d]istinguishing speech

from a religious viewpoint, on the one hand, from religious proselytizing,

on the other, is comparable to distinguishing meetings to discuss political

issues from meetings whose principal purpose is to recruit new members

54. 515 U.S. 819 (1995).

55. See id. at 846.

56. Id. at 874–75 (Souter, J., concurring).

57. Id. at 845–46 (majority opinion).

58. 533 U.S. 98 (2001).

59. Id. at 128 (Stevens, J., dissenting).

60. Id. at 133–34.

83] WHAT SPEECH IS PROSELYTIZING? 95

to join a political organization.”

Justice Stevens further wrote that

just as a school may allow meetings to discuss current events from a

political perspective without also allowing organized political

recruitment, so too can a school allow discussion of topics such as

moral development from a religious (or nonreligious) perspective

without thereby opening its forum to religious proselytizing or

worship.

In another dissent in Good News Club, Justice Souter joined by

Justice Ginsberg stated that “Justice Stevens distinguishes between

proselytizing and worship and distinguishes each from discussion

reflecting a religious point of view. I agree with Justice Stevens that

Good News’s activities may be characterized as proselytizing and

therefore as outside the purpose of Milford’s limited forum.”

Responding to the dissent’s critiques in an aside, the majority opinion

dismissed both Justices Stevens’s and Souter’s points and responded to

Justice Stevens’s view by arguing that even if Good News’s speech “is

speech ‘aimed principally at proselytizing or inculcating belief in a

particular religious faith,’ [t]his does not, to begin with, distinguish

Rosenberger, which also involved proselytizing speech.”

But the

question unanswered by the majority opinion remains that if both

Rosenberger and Good News Club admittedly approve proselytizing

speech, how does that outcome square with previous Establishment

Clause principles or precedent barring proselytizing?

Thus, in Rosenberger and in Good News Club, the High Court gave

the “green light” to what would, in other circumstances, be deemed

Establishment Clause prohibited expression. The practical conundrum

for school officials and teachers who have to enforce these judicial

rulings is simple: is religious-oriented student speech or expression

protected from “viewpoint discrimination” by the Free Speech Clause, or

is it instead proselytizing prohibited by the Establishment Clause? Or,

perhaps more simply, under what circumstances does religious

expression fall into Free Speech or Establishment Clause territory?

61. Id. at 131.

62. Id. at 132.

63. Id. at 138 n.3 (Souter, J., dissenting) (citation omitted). A “forum” analysis is beyond the

scope of this article. Briefly, what level of First Amendment Free Speech Clause protection speech is

afforded may depend upon the forum created by the government, which ranges from “open” public

forum to a “limited open” to “closed non-public forum.” See Perry Educ. Ass’n v. Perry Local

Educators’ Ass’n, 460 U.S. 37, 45–49 (1983).

64. Good News Club, 533 U.S. at 125–26 (citation omitted).

96 BYU JOURNAL OF PUBLIC LAW [Volume 21

C. The Ten Commandments Cases and Proselytizing

The basic question remains whether a “no proselytizing” rule,

including a clearly adopted judicial definition of “proselytizing,” could

be the bottom-line which differentiates Establishment Clause

prohibitions from Free Speech Clause precluded “viewpoint

discrimination.”

Unfortunately, the two Ten Commandments cases from the 2005

term did not provide such a bottom-line test. In these cases, the Justices

again took note of the nascent “no proselytizing” rule in both concurring

and dissenting opinions, but did little to resolve this doctrinal dilemma.

In both cases the Court examined the constitutionality of Ten

Commandments displays located on government property. In these cases,

the legal principle of “no proselytizing” appears to have been degraded

to a question of fact, or mixed question of law and fact, rather than a

conclusion of law, in both the concurring and dissenting opinions.

In Van Orden v. Perry, the Court upheld as constitutional the display

of the Ten Commandments on a monument at the Texas State Capitol.

In his concurring opinion, Justice Scalia stated, “[T]here is nothing

unconstitutional in a State’s favoring religion generally, honoring God

through public prayer and acknowledgment, or, in a non-proselytizing

manner, venerating the Ten Commandments.”

As in Lee, Justice

Scalia’s statements indicate that the converse, then, may be true: there is

something unconstitutional with a State honoring God in a proselytizing

manner. Justice Souter disagreed that the speech qualified as non-

proselytizing, noting in dissent:

There is no question that the State in its own right is broadcasting the

religious message. When Texas accepted the monument from the

Eagles, the state legislature, aware that the Eagles “for the past several

years have placed across the country . . . parchment plaques and granite

monoliths of the Ten Commandments . . . [in order] to promote youth

morality and help stop the alarming increase in delinquency,” . . .

expressly approved of the Eagles’ proselytizing, which it made on its

65. Establishment Clause cases are usually decided at the appellate level as a matter of law

pursuant to a de novo standard. See, e.g., County of Allegheny v. ACLU, Greater Pittsburgh

Chapter, 492 U.S. 573 (1989). A mixed question of law and fact is usually reviewed de novo as well.

See United States v. McConney, 728 F.2d 1195, 1200-04 (9th Cir. 1984), abrogated on other

grounds by Estate of Merchant v. Comm’r, 947 F.2d 1390 (9th Cir. 1991). A purely factual issue is

subject to the lesser “clearly erroneous” standard of review. See Pullman-Standard v. Swint, 456

U.S. 273, 287 (1982).

66. 125 S. Ct. 2854 (2005).

67. Id. at 2864 (Scalia, J., concurring).

83] WHAT SPEECH IS PROSELYTIZING? 97

own.

So, in Van Orden, the question remains as to whether Texas acted in a

“non-proselytizing manner,”

or had “expressly approved of the Eagles

proselytizing.”

In the companion case of McCreary County v. ACLU, the Court

came to the opposite result and found that the Ten Commandments

displays in Kentucky courthouses were unconstitutional.

Justice Scalia

again discussed proselytizing, this time in dissent, stating that “there is

no indication that the prayer opportunity has been exploited to

proselytize or advance any one, or to disparage any other, faith or

belief.”

This statement again indicates Justice Scalia himself believes

that when an opportunity for prayer is used to proselytize, that prayer

opportunity cannot withstand constitutional scrutiny. No other opinion in

McCreary addressed proselytizing, or a “no proselytizing” rule.

D. The Term Proselytizing Has Served As An Ill-Defined Operating

Assumption In Supreme Court Opinions

As this review illustrates, from the beginning of modern

Establishment Clause case law, public taxpayer sponsored proselytizing

stood beyond the pale in judicial opinions and was assumed to be

prohibited by the Establishment Clause.

Even Justice Scalia, in his

vehement dissents exemplified in Lee and McCreary, acknowledges

“sectarian” speech goes too far.

Perhaps the high point of an emerging

“no proselytizing” rule was Justice Kennedy’s opinion in County of

Allegheny in which he attempted, but failed, to have the Court formally

adopt an explicit “no proselytizing” bedrock rule.

But, almost

inexplicably, in the “viewpoint discrimination” line of cases, what was

termed “proselytizing” speech by dissenting justices passes muster under

the Free Speech Clause, and the government itself is prohibited from

engaging in “viewpoint discrimination.”

In summary, the term “proselytizing” in High Court opinions has

68. Id. at 2893 n.3 (Souter, J., dissenting).

69. Id. at 2864 (Scalia, J., concurring).

70. Id. at 2893 n.3 (Souter, J., dissenting).

71. McCreary County, Ky. v. ACLU, 125 S. Ct. 2722 (2005).

72. Id. at 2753 (Scalia, J., dissenting) (quoting Marsh v. Chambers 463 U.S 783, 794–95

(1983) (internal quotation marks omitted)).

73. See discussion supra Part II.A.

74. See discussion supra Parts II.A, at p. 10, II.C, at p. 17.

75. See discussion supra Part II.A, at pp. 8–10.

76. See discussion supra Part II.B.

98 BYU JOURNAL OF PUBLIC LAW [Volume 21

been used as an operating assumption, e.g., a description of what speech

a particular justice believes crosses the Establishment Clause line as a

matter of law. But “proselytizing” has never been adequately defined, or

adopted as an identifiable legal test, by a majority of the Court. This

reality is well illustrated by Justices Scalia and Souter reviewing the

same photographs of the Ten Commandments monument in Texas, yet

differing as to whether the monument is proselytizing or not.

III.

NINTH CIRCUIT: COLE AND LASSONDE

The Ninth Circuit has built upon the Court’s Establishment Clause

precedent to adopt a more certain “no proselytizing” doctrine than either

the Court or other federal judicial circuits in Cole v. Oroville Union High

School District

and Lassonde v. Pleasanton Unified School District.

In both cases, the Ninth Circuit made clear that proselytizing student

speech is prohibited (at least during public high school graduation

ceremonies) by the Establishment Clause and its requirements of

separation between church and state.

In Cole, the Ninth Circuit confronted a proposed speech by co-

valedictorian Chris Niemeyer in a Northern California high school

graduation ceremony.

The court analyzed the speech and found it both

77. See discussion supra Part II.C. Given this split, it is possible the concept of proselytizing

now encompasses mixed determinations of law and fact. This question for practitioners may

determine evidentiary burdens at trial and opportunity for success on appeal.

78. 228 F.3d 1092 (9th Cir. 2000).

79. 320 F.3d 979 (9th Cir. 2003).

80. Cole, 228 F.3d 1092. Mr. Niemeyer’s second proposed speech was titled “The Key to

Success” and stated as follows:

Before I start tonight, I want to extend my gratitude to Oroville High School and its staff

for the great learning experience I have had the past four years. Along with the great

instruction I have also been introduced to ideas and philosophies that have not

corresponded with my own personal beliefs. I now have the opportunity to speak from

my heart and share what I know is the key to success. I should warn you that the G-word

and J-word may appear in my speech – God and Jesus. If you are harshly offended by my

convictions, I would like to give you the opportunity to leave. Any takers? Again, my

intent is not to force my ideas or offend anyone, but rather, to encourage everyone on this

occasion.

Tonight, as we gather to celebrate this moment in our lives, I want to propose and ask

you to respond to three questions; they can apply to all in attendance—who are we?,

why are we here?, and where are we going?

Who are we? On this memorable occasion, we are graduates, family, teachers, and

friends, most looking toward the future for success. During high school, I have come to

believe that there are three types of people in this world. Some see a glass as half full.

Others see it as half empty. And then there are those who just don’t see the glass. But we

are a people with busy lives and diverse backgrounds, yet deep inside each of us we are

all in search of true happiness and something worth living for. Although we strive for

perfection, we constantly fall short. Some of us merely exist, some struggle to make it

83] WHAT SPEECH IS PROSELYTIZING? 99

sectarian and proselytizing.

Prior to graduation, Mr. Niemeyer

proposed two draft speeches for approval by the principal—an original

and a modified version.

Both speeches were rejected by the principal,

school superintendent, and legal counsel, and the student eventually sued

school officials for damages claiming “viewpoint discrimination”

violative of the Rosenberger line of cases.

In addition to the actual

language of the speeches in the record, the Ninth Circuit panel was aware

that Mr. Niemeyer had admitted in deposition testimony that if an

audience member found Jesus or God as a result of his proposed speech,

it would be a good result.

Additionally, in his deposition Mr. Niemeyer

stated that the fundamental purpose of his speech was to praise God and

glorify him through the words.

Mr. Niemeyer also admitted his

proposed speech was testifying, witnessing, and preaching.

First, the Ninth Circuit recognized that the school district retained

plenary authority over the graduation ceremony.

Thus, restricting the

from one day to the next. Some succeed at most everything we attempt. All of us long for

love and acceptance. I believe as a whole, we share one distinct similarity – the one, and

only, perfect God created us. Each of us has value. We are all God’s children, through

Jesus Christ’ death, when we accept His free love and saving grace in our lives.

Why are we here? What is our purpose for existence? It has been said that until you

have found something worth dying for, you are not really living. We have all been given

our lives by God, in order to glorify Him. I believe that God has a plan for each one of

our lives – a plan to prosper us and give us a hope for the future. As individuals, we have

a choice, of whether to choose His perfect will in our lives or our own futile plans.

But whatever our plans and dreams are, I believe they will not fully succeed unless we

pattern our lives after Jesus’ example.

Where are we going? We do not know what tomorrow holds. Some of us may leave

here tonight and become doctors, lawyers, or teachers. One of us may find a cure for aids

or cancer or we may discover a technological breakthrough. Most of us desire to be

successful, contribute to society, and make a difference. However, as we leave tonight

and go our separate ways, may we remember one thing: God seeks a personal

relationship with each one of us, as He longs for us to live forever with Him. Jesus wants

to be our best friend. When others let us down - He will not. If we let Him direct our

lives, He will give us the desires of our heart. Do you look to the future with uncertainty

or confidence, fear or peace? Whether a graduate, family member, teacher, or friend, I

encourage you to accept God’s love and grace. We must yield to God our lives and let

Him direct our future paths. For with God, you will find eternal happiness and absolute

success in all that you do.

Supplemental Excerpts of Record at 187-89, Cole v. Oroville Union High Sch. Dist., 228 F.3d 1092

(9th Cir. 2000) (Case No. 99-16550) [hereinafter SER].

81. Cole, 228 F.3d at 1097, 1103–04.

82. Id. at 1096.

83. Id. at 1096–97, 1101.

84. SER, supra note 80, at 30, Undisputed Facts ¶ 79.

85. SER, supra note 80, at 30, Undisputed Facts ¶ 73.

86. SER, supra note 80, at 30–31, Undisputed Facts ¶¶ 74–77, 84.

87. Cole, 228 F.3d at 1103. By finding “plenary authority,” the Ninth Circuit is ruling the

forum “closed.” See supra note 63 regarding forum analysis.

100 BYU JOURNAL OF PUBLIC LAW [Volume 21

proposed co-valedictorian speech was “necessary to avoid violating the

Establishment Clause”

because allowing Mr. Niemeyer to give his

proposed speech “would have constituted government endorsement of

religious speech similar to the prayer policies found unconstitutional in

Santa Fe and Lee.”

The court rationalized that an “objective observer

familiar with the District’s policy and its implementation would have

likely perceived that the speech carried the District’s seal of approval.”

These principles, set forth in Santa Fe and Lee, are also consistent with

Justice O’Connor’s endorsement test.

Secondly, the Ninth Circuit held “proselytizing, no less than prayer,

is a religious practice.”

To reach this conclusion, the Ninth Circuit

relied upon High Court precedent for the proposition that proselytizing

itself is a “religious activity.”

Taking Santa Fe and Lee to the next

step, the court determined that the secondary test is whether a reasonable

dissenter could believe that the group religious activity at a major public

school event signified his or her own promotion or approval.

Finally,

the court concluded that “allowing the students to engage in sectarian

prayer and proselytizing as part of the graduation ceremony would

amount to government sponsorship of, and coercion to participate in,

particular religious practices.”

Three years later the Ninth Circuit reiterated that Cole was binding

precedent in Lassonde v. Pleasanton Unified School District.

In that

case, the court turned aside another “viewpoint discrimination” attack

upon school district officials, this time based upon the then recent U.S.

88. Cole, 228 F.3d at 1101 (citing Santa Fe Indp. Sch. Dist. v. Doe, 530 U.S. 290 (2000)).

89. Id. at 1103.

90. Id.

91. Id. at 1104.

92. Id. (citing Texas Monthly, Inc. v. Bullock, 489 U.S. 1, 23 (1989)).

93. Id.

94. Id. There did exist a slightly different analytical approach to this situation. In Tinker v.

Des Moines Independent Community School District, the Court held that students retained First

Amendment free speech rights, in that case to wear black armbands to protest the Vietnam War. 393

U.S. 503, 504, 514 (1969). However, in Hazelwood School District v. Kuhlmeier, the Court held that

educators do not violate the First Amendment when exercising control over style and content of

student speech in faculty-supervised activities so long as the educator’s actions are “reasonably

related to legitimate pedagogical concerns.” 484 U.S. 260, 273 (1988). Speech sponsored by the

school is thus subject to “greater control” by school authorities than speech not so sponsored. Id. at

271–73. In Cole, the District Court below relied upon Kuhlmeier to rule that the Oroville Union

High School District retained curriculum authority over the graduation ceremony, and could lawfully

disapprove the speech. Cole v. Oroville Union High Sch. Dist., No. Civ. S-98-1037, slip op. at 16–

17 (E.D. Cal. June 10, 1999). The trial court merely noted school approval of the proposed speech

would implicate the Establishment Clause. Id. at 19 n.8. Despite briefing and argument on this point,

the Ninth Circuit focused solely upon the Establishment Clause.

95. 320 F.3d 979 (9th Cir. 2003).

83] WHAT SPEECH IS PROSELYTIZING? 101

Supreme Court opinion in Good News Club.

In Lassonde, another

Northern California high school graduation speaker sought to deliver a

“proselytizing” speech at his graduation. However, this case differed

slightly from Cole because the school district excised certain

proselytizing language from Mr. Lassonde’s speech, though the student’s

counsel had proposed a disclaimer as the appropriate device to deliver

the original speech intact.

Eventually the student delivered the excised

speech without a disclaimer, with unedited versions available for

distribution.

Not satisfied with this result, Mr. Lassonde sued school

district officials for damages.

The key argument offered by the student’s counsel in Lassonde was

that the “viewpoint discrimination” doctrine as applied in Good News

Club vitiated Cole.

100

The Ninth Circuit rejected this approach and ruled

“Good News Club did not undermine Cole.”

101

In reaching this

conclusion the court restated the “two related, but subtly distinct,

reasons” which necessitated the school district’s actions in Cole as (1)

“[T]he school district had to censor the speech in order to avoid the

appearance of government sponsorship of religion”; and (2) “[A]llowing

the speech would have had an impermissibly coercive effect on

dissenters, requiring them to participate in a religious practice even by

their silence.”

102

In rejecting the student’s attempts to distinguish Cole

based upon the proposed disclaimer, the Ninth Circuit stated that “a

disclaimer could not address the other ground underlying both Cole and

Lee: permitting a proselytizing speech at a public school’s graduation

ceremony would amount to coerced participation in a religious

practice.”

103

Thus, allowing Mr. Lassonde’s speech during graduation

would be enough to coerce the audience into religious participation.

Finally, the Ninth Circuit in Lassonde distinguished the Good News

“viewpoint discrimination” holding that after-hours meetings do not bear

the imprimatur of the school, while graduation ceremonies require “the

participation of all, as a captive audience.”

104

The Ninth Circuit opinion in Cole mentioned “sectarian” twenty-nine

times and “proselytizing” seventeen times.

105

Similarly, the Lassonde

96. Good News Club v. Milford Cent. Sch., 533 U.S. 98 (2001).

97. Lassonde, 320 F.3d at 981.

98. Id. at 982.

99. Id.

100. Id. at 985.

101. Id.

102. Id. at 983.

103. Id. at 984.

104. Id. at 985.

105. Cole v. Oroville Union High Sch. Dist., 228 F.3d 1092 (9th Cir. 2000).

102 BYU JOURNAL OF PUBLIC LAW [Volume 21

court applied the term “sectarian” six times and “proselytizing” fourteen

times.

106

Both decisions squarely rule that proselytizing is a religious

exercise, the proposed practice of which required that the school district

censor student speech to be delivered to a captive audience in school-

sponsored activities.

107

Yet, at no point in either decision is proselytizing

defined as a legal term of art, much less as an applicable test. Perhaps

this was because the speakers at issue were manifestly proselytizing in

the proposed speeches under almost any conceivable meaning given to

the word. Yet this definitional omission does carry consequences. Public

officials must make the initial judgment call whether speech is prohibited

proselytizing. The courts may secondarily review this judgment call. A

more certain definition of proselytizing would resolve vexing questions,

assist Establishment Clause certainty, and limit unintended incursions

into “viewpoint discrimination” by public officials.

IV.

TOWARDS A WORKABLE DEFINITION OF PROSELYTIZING

A. Other Federal Circuits Consider Proselytizing

Despite the “no proselytizing” rule outlined in Cole and Lassonde, as

noted earlier, the Ninth Circuit did not define the term in either opinion.

Other federal circuit opinions have delved somewhat more deeply into

defining the term “proselytizing” as a legal principal when applied to

discrete facts.

108

In the Third Circuit decision Child Evangelism Fellowship of New

Jersey, Inc. v. Stafford Township School District, a religious organization

sought an injunction against particular elementary schools that denied

that organization access to school grounds to promote meetings and

activities.

109

Though that case turned on a forum analysis and whether

prohibiting use by the religious group constituted “viewpoint

discrimination,”

110

the appellate court included a dictionary definition of

proselytizing. Using the Webster’s definition, the Third Circuit

determined that to proselytize means: “‘to recruit members for an

institution, team, or group’ and ‘to convert from one religion, belief,

106. Lassonde, 320 F.3d 979.

107. Cole, 228 F.3d at 1103–04; Lassonde, 320 F.3d at 983–84.

108. See, e.g., Adler v. Duval County Sch. Bd., 250 F.3d 1330, 1331 (11th Cir. 2001) (stating

that not every speaker at a high school graduation should be considered a state speaker); Chandler v.

Siegelman, 230 F.3d 1313, 1317 (11th Cir. 2000) (determining that private speech is constitutionally

protected even though it occurs at a school related function).

109. 386 F.3d 514, 522–23 (3d Cir. 2004).

110. Id. at 526.

83] WHAT SPEECH IS PROSELYTIZING? 103

opinion or party to another.’”

111

The appellate court did not adopt a

blanket “no proselytizing” rule similar to the Ninth Circuit’s rule

articulated in Cole and Lassonde. However, the Third Circuit analyzed

the case under its stated definition and determined the problem with the

school district’s practice was that they did not reject non-religious groups

that proselytized in the sense of “recruiting members,” but excluded only

“religiously affiliated groups that attempt to recruit new members.”

112

The Third Circuit held that this stance by the schools constituted

impermissible viewpoint discrimination.

113

Because this case did not

address student speech, it did not preclude the adoption of a “no

proselytizing” rule in that context.

The Third Circuit added to its proselytizing analysis in Walz v. Egg

Harbor Township Board of Education

114

where it reasoned as follows:

Context is essential in evaluating student speech in the elementary

school setting. It would seem reasonable that student expression may

implicate religion if done out of personal observance as opposed to

outward promotion. There is a marked difference between expression

that symbolizes individual religious observance, such as wearing a

cross on a necklace, and expression that proselytizes a particular

view.

115

Thus, examining both of these Third Circuit cases together, the court

appears to be heading toward a bright line “no proselytizing” rule where

student speech is concerned, even though it has yet to be articulated as

such.

In the Fifth Circuit opinion in Santa Fe v. Doe, the appellate court

implicitly adopted the “no proselytizing” rule for graduation speeches.

116

The appellate court, in the portion of the case which was not reviewed by

the Supreme Court when it granted certiorari, addressed the problem of

111. Id. at 528 (citing WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 1821 (1976)).

112. Id.

113. Id. The Supreme Court has not settled the question whether a concern about a possible

Establishment Clause violation can justify viewpoint discrimination. In Good News Club, the Court

stated, “We have said that a state interest in avoiding an Establishment Clause violation ‘may be

characterized as compelling,’ and therefore may justify content-based discrimination. However, it is

not clear whether a State’s interest in avoiding an Establishment Clause violation would justify

viewpoint discrimination.” Good News Club v. Milford Cent. Sch., 533 U.S. 98, 112–13 (2001)

(citation omitted).

114. 342 F.3d 271 (3d Cir. 2003).

115. Id. at 278–79 (citing Hills v. Scottsdale Unified Sch. Dist., 329 F.3d 1044, 1053 (9th Cir.

2003) (footnote omitted)).

116. Doe v. Santa Fe Indep. Sch. Dist., 168 F.3d 806 (5th Cir. 1999).

104 BYU JOURNAL OF PUBLIC LAW [Volume 21

proselytizing speech in graduation ceremonies.

117

In Santa Fe, the Fifth

Circuit defined “proselytizing prayers” as prayers “designed to reflect,

and even convert others to, a particular religious viewpoint.”

118

Applying

that definition, the Fifth Circuit determined that proselytizing prayer

“conveys a message not only that the government endorses religion, but

that it endorses a particular form of religion,” a practice which is, at the

least, constitutionally questionable.

119

Finally, the Fifth Circuit held that

“student-selected, student-given, sectarian, proselytizing invocations and

benedictions at high school graduations . . . [are] antithetical to the

Establishment Clause.”

120

The Fourth Circuit has also defined proselytizing and attempted to

distinguish it from the similar concept of “advancing religion.” In Wynne

v. Town of Great Falls, South Carolina,

121

the Fourth Circuit addressed

prayer during city council meetings and held that those particular prayers

run afoul of the Establishment Clause as interpreted by Marsh.

122

In its

analysis, the appellate court cited to Webster’s Third New International

Dictionary and stated that to “‘proselytize’ on behalf of a particular

religious belief necessarily means to seek to ‘convert’ others to that

belief.”

123

The court reasoned that because Marsh prohibits prayers that

either “proselytize or advance one . . . faith or belief,”

124

not only are

proselytizing prayers prohibited, but also prohibited are “legislative

prayers that have the effect of affiliating the government with any one

specific faith or belief.”

125

Further, the court determined that mere

mention of Jesus Christ to the exclusion of other potential deities

indicated an effort to advance one faith.

126

Though the Fourth Circuit has

yet to use this definition in its Establishment Clause analysis in the

public school arena, as the Supreme Court has repeatedly stated, the

Establishment Clause protections are especially heightened in the school

context because children and “adolescents are often susceptible to

pressure from their peers towards conformity, and that the influence is

strongest in matters of social convention.”

127

Thus, the Fourth Circuit

117. Id.

118. Id. at 817.

119. Id. at 817–18.

120. Id. at 818.

121. 376 F.3d 292 (4th Cir. 2004).

122. Id. at 298 (citing Marsh v. Chambers, 463 U.S. 783, 794 (1983)).

123. Id. at 300.

124. Id. at 297 (quoting Marsh, 463 U.S. at 794–95)).

125. Id. (quoting County of Allegheny v. ACLU, Greater Pittsburgh Chapter, 492 U.S. 573,

603 (1989)).

126. Id. at 301.

127. See Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 312 (2000) (quoting Lee v.

Weisman, 505 U.S. 577, 593 (1992)).

83] WHAT SPEECH IS PROSELYTIZING? 105

would be even more likely to find proselytizing speech, within the public

school environment, an Establishment Clause violation.

The Eleventh Circuit, though not defining the term, has also used

“proselytizing” as an important factor in determining whether an

Establishment Clause violation has occurred. For example, in Chandler

v. Siegelman the Eleventh Circuit upheld the validity an Alabama statute

that permitted non-sectarian and non-proselytizing student-initiated

prayer at school-related events.

128

The court held that where prayer is

“genuinely student-initiated” and is not a result of a school policy that

“actively or surreptitiously encourages” the speech, that prayer is

constitutional.

129

Nonetheless, the court still recognized the bottom line

that even student-initiated proselytizing speech is not constitutionally

allowable, stating “Proselytizing speech is inherently coercive and the

Constitution prohibits it from the government’s pulpit.”

130

Additionally,

in Bannon v. School District of Palm Beach County, another Eleventh

Circuit opinion, the court addressed the validity of religious words and

symbols painted on murals as part of a school beautification project.

131

The court noted that the appellant’s argument “would have us adopt a

reading of [Rosenberger and Lamb’s Chapel] that would require a

school . . . to allow students to use the walls of a public school to

proselytize.”

132

The Eleventh Circuit, appearing to think that this notion

was out of the realm of possibility, disposed of this argument in one

sentence and held that “neither case mandate[d] such a result.”

133

B. Formulating the Definition

If public schools and other public institutions are thus prohibited by

the Establishment Clause from sponsoring the religious exercise of

proselytizing, the critical question becomes what conduct precisely

constitutes proselytizing.

134

An “I know it when I see it” judicial standard

128. Chandler v. James, 180 F.3d 1254 (11th Cir. 1999), vacated, Chandler v. Siegelman, 530

U.S. 1256 (2000). The Supreme Court vacated the decision and remanded it to be read in light of

Santa Fe. On remand, the Eleventh Circuit held that the first Chandler opinion was not in conflict

with Santa Fe and that the Santa Fe opinion was limited to the condemnation of school sponsorship

of prayer while the Chandler opinion condemns school censorship of student prayer. Chandler v.

Siegelman, 230 F.3d 1313, 1315 (11th Cir. 2000).

129. Chandler, 230 F.3d at 1317.

130. Chandler, 180 F.3d at 1265.

131. 387 F.3d 1208 (11th Cir. 2004).

132. Id. at 1216 (referring to Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819

(1995), and Lamb’s Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384 (1993)).

133. Id.

134. For example, several distinguished professors and commentators came to quite different

conclusions on how the situation in Cole should have been addressed. See, e.g., Symposium, The

State Suppression of Student Prayer, 5 NEXUS 1 (2000).

106 BYU JOURNAL OF PUBLIC LAW [Volume 21

does nothing to assist school administrators, teachers, or other public

officials from being sued for damages after making difficult judgment

calls.

135

Non-court sources appear to muddy, rather than clear, the waters. For

example, the Association of International Educators defines proselytizing

in its Code of Ethics as “unsolicited, coercive, manipulative and/or

hidden persuasion that seeks to influence others to adopt another way of

thinking, believing, or behaving.”

136

Accordingly, “[i]n [r]elationships

with [s]tudents, [s]cholars, and [o]thers[,] [m]embers [s]hall: . . . [n]ot

use one’s position to proselytize.”

137

But such an academic definition

focuses heavily upon the mental state of the speaker, an approach at odds

with the “reasonable observer” judicial standard.

138

Recent proposed

federal legislation regarding specifically the United States Air Force

Academy simplistically attempted to restrict “coercive and abusive

religious proselytizing.”

139

This begs the question: how does one define

“coercive and abusive” in this context, and can proselytizing at taxpayer

expense ever not be at least coercive? Silence does not help: the United

States Department of Education Guidance on Constitutionally Protected

Prayer in Public Elementary and Secondary Schools makes no mention

of the term “proselytizing” or any similar terms such as

“evangelizing.”

140

Considering all of these approaches from both the courts and non-

legal sources, a concise definition of proselytizing for deciding questions

of fact or reaching conclusions of law might be expressive activity which

a reasonable observer would perceive attempts to convert the audience

from one religious belief, or lack of a belief, to another religious belief,

or lack thereof.

135. See, e.g., Wynne v. Great Falls, S.C., 376 F.3d 292 (4th Cir. 2004) (quoting County of

Allegheny v. ACLU, 492 U.S. 573 (1989)).

136. NAFSA: ASSOCIATION OF INTERNATIONAL EDUCATORS, NAFSA’S CODE OF ETHICS, at

2, 3(f) (Mar. 9, 2003), http://www.nafsa.org/about.sec/governance_leadership/ethics_standards/nafsa

_s_code_of_ethics (last visited May 6, 2006).

137. Id.

138. See Lynch v. Donnelly, 465 U.S. 668, 690 (1984) (O’Conner, J., concurring); see also

Brown v. Woodland Joint Unified Sch. Dist., 27 F.3d 1373, 1378–79 (9th Cir. 1994) (citing Lee v.

Weisman, 505 U.S. 577, 591–93, 597–99 (1992)).

139. See 151 Cong. Rec. H4761 (daily ed. June 20, 2005) (proposed amendment to H.R. 2863,

sponsored by Rep. David R. Obey ). After agreeing to the Obey amendment, the amendment failed

passage by recorded vote 198–210. Id. at H4779.

140. See U.S. DEPARTMENT OF EDUCATION, GUIDANCE ON CONSTITUTIONALLY PROTECTED

PRAYER IN PUBLIC ELEMENTARY AND SECONDARY SCHOOLS (Feb. 7, 2003),

http://www.ed.gov/policy/gen/guid/religionandschools/prayer_guidance.html (last visited Oct. 16,

2006) (discussing prayer at graduation and stating—contrary to Cole and Lassonde—that students

who offer a religious message at graduation will not violate the establishment clause if the students

are chosen using a truly neutral criteria because the speech is not attributable to the school).

83] WHAT SPEECH IS PROSELYTIZING? 107

C. Applying the Definition: An Objective Standard

The Cole case presents the type of factual “real life” conflict any

proposed definition of “proselytizing” must adequately address to be of

use to public officials and the courts.

141

Mr. Niemeyer in that situation

was co-valedictorian along with Ms. Delisa Freistadt. Ms. Freistadt was

concerned Mr. Niemeyer and Mr. Cole might try to use the graduation

ceremony to recruit others to their religious views.

142

Ms. Freistadt’s

parents thereafter objected to sectarian references, including reference to

Jesus, in the graduation ceremony.

143

Deposition testimony established

unquestionably that Mr. Niemeyer was “testifying,” “witnessing,” and

acting as an active evangelical proponent of his faith in attempting to

give his speech.

144

Evangelical activity during the school day by Mr.

Niemeyer and his Bible study club had negatively affected Ms. Freistadt

during her high school tenure.

145

Ms. Freistadt knew the faculty advisors

and the school principal must approve all speeches prior to

presentation.

146

Ms. Freistadt believed she should have been able “to

graduate as co-valedictorian of [her] class without being subjected to

offensive religious proselytizing.”

147

Ms. Freistadt and her fellow

students would have known that Mr. Niemeyer’s statements received the

official government stamp of approval prior to presentation.

148

During

such a speech the government would be placing Ms. Freistadt and other

members of the audience in the untenable position of feeling like

“outsiders.”

149

Such a direct assault upon personal religious sensibilities

under the auspices of the State would have been an affront to both Justice

Kennedy’s “coercion test” and Justice O’Connor’s “endorsement” test. It

would have substantially failed even Justice Scalia’s “sectarian”

approach exemplified by his dissent in Lee.

150

Thus, to adequately address these types of “real life” conflicts, this

article-proposed definition is minimally subjective and primarily

141. SER, supra note 80, at 60-62, Freistadt Decl. ¶¶ 1–18.

142. SER, supra note 80, at 27, Undisputed Facts ¶ 47.

143. SER, supra note 80, at 27, Undisputed Facts ¶ 48.

144. SER, supra note 80, at 30–31, Undisputed Facts ¶¶ 74–77, 84.

145. SER, supra note 80, at 61, Freistadt Decl. ¶ 5.

146. Cole v. Oroville Union High Sch. Dist., 228 F.3d 1092, 1103 (9th Cir. 2000).

147. SER, supra note 80, at 62, Freistadt Decl. ¶ 18.

148. SER, supra note 80, at 61–62, Freistadt Decl. ¶¶ 7–14.

149. See County of Allegheny v. ACLU, Greater Pittsburg Chapter, 492 U.S. 573, 625 (1989)

(O’Connor, J., concurring) (quoting Lynch v. Donnelly, 465 U.S. 668, 688 (1984) (O’Connor, J.,

concurring)).

150. See supra note 46.

108 BYU JOURNAL OF PUBLIC LAW [Volume 21

objective. Folding this proposed definition into a workable test, public

official(s) initially, and the court(s) secondarily, would consider (1) the

nature of the expressive activity; (2) to a limited extent, the speaker’s

purpose, e.g., whether he or she is involved in an effort to convert; and,

most conclusively, (3) the potential objective impact upon the reasonable

observer.

Based upon current case law involving public school-sponsored

activities, if the sponsored expressive activity is per se a religious

exercise or practice, e.g., prayer, it is assumed proselytizing as a matter

of law and the analysis concludes.

151

Next, if the speaker as a factual

matter admits intent to convert, as did Mr. Niemeyer in Cole, then under

the proposed test the expression would violate the Establishment Clause.

Finally, if either factor one or two is not conclusive, the public official

initially, and the court secondarily, would examine the potential impact

upon the audience (or other participants in the activity) from the

standpoint of the reasonable observer as a matter of law. This third factor

includes whether the particular audience is “captive,” and the nature of

the precise forum, if any, created by the public agency.

152

This proposed

approach to determining what speech or expression is proselytizing and

thereby prohibited by the Establishment Clause is consistent with High

Court precedent and opinions from McCollum to Santa Fe set forth

above, as well as the federal circuit decisions to date.

CONCLUSION

The High Court has declined to accept review of several Circuit

decisions in which proselytizing was either key to the case or at least

mentioned in the Circuit panel’s opinion.

153

Without a definitive

Supreme Court opinion, there remains some room for doubt whether the

per se approach prohibiting proselytizing adopted by the Ninth Circuit in

Cole and Lassonde will ultimately prevail. The differing High Court

opinions in the two 2005 term Ten Commandment cases shed little light

on this question.

154

But, it becomes difficult to envision a different

standard towards proselytizing than that mandated by the Ninth Circuit,

at least in public schools, so long as Lee and Santa Fe remain precedent.

151. Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290 (2000); Lee v. Weisman, 505 U.S. 577

(1992); Lassonde v. Pleasanton Unified Sch. Dist., 320 F.3d 979 (9th Cir. 2003); Cole, 228 F.3d

1092.

152. See supra note 63, regarding forum analysis.

153. Cole, 228 F.3d 1092 ; Lassonde, 320 F.3d 979; Santa Fe, 530 U.S. 290; Chandler v.

Siegelman, 230 F.3d 1313 (11th Cir. 2000).

154. McCreary County, Ky. v. ACLU, 125 S. Ct. 2722 (2005); Van Orden v. Perry, 125 S. Ct.

2854 (2005).

83] WHAT SPEECH IS PROSELYTIZING? 109

Why such an assertion? Why should proselytizing at taxpayer

expense be treated differently than other forms of Free Speech Clause

protected expression? Why does conduct that would in other

circumstances be considered protected Free Speech instead become

Establishment Clause prohibited activity in public schools or other public

institutions? The answer is that proselytizing by its very nature is a direct

assault upon the religious identity, or lack of religious identity, of one or

more members of an audience by a speaker using a government-

sponsored and government-controlled platform.

This conclusion does not presume that the courts or public officials

must sanitize religion, or all religious expression, from public or civic

life.

155

To the contrary, it is possible to envision personal references to

religion in a graduation speech, for example, which are not

proselytizing.

156

What it does assert is that proselytizing, by its very

nature, goes too far and crosses the Establishment Clause line.

157

Civic life must eventually evolve an acceptable etiquette for public

ceremonies.

158

The ethic of tolerance, however described, lies at the heart

of such etiquette.

159

An ethic of mutual tolerance pre-supposes the ability

to listen to one another without censorship or condemnation.

160

However,

it stretches tolerance too far to presume a person must listen to

statements from a government-supplied podium that attack his or her

very identity as a religious, or non-religious, person. An ethic of mutual

tolerance in such circumstances focuses upon the ethical obligations of

the speaker and becomes an off-shoot of the Golden Rule: if you do not

want someone to directly or indirectly attack your own religion, do not

directly or indirectly attack others’ religion (or lack thereof). Because

such an ethic may be difficult to follow in the heat of the moment, the

Establishment Clause would enforce it through the bottom-line “no

proselytizing” rule as adopted by the Ninth Circuit.

155. Christian M. Keiner, A Critical Analysis of Continuing Establishment Clause Flux as

Illustrated by Lee v. Weisman, 112 S. Ct. 2649 (1992) and Graduation Prayer Case Law: Can

Mutual Tolerance Reconcile Dynamic Principles of Religious Diversity and Human Commonality?,

24 P

AC. L.J. 401, 457–60 (1993).

156. An “I” message would be far different than Mr. Niemeyer’s “we” message differentiating

who is, and who is not, “God’s children” directed toward the entire captive audience, e.g., “We are

all God’s children, through Jesus Christ’ death, when we accept His free love and saving grace in

our lives.” See note 80 above for the entire speech.

157. Keiner, supra note 155, at 457.

158. See generally, Alan E. Brownstein, Prayer and Religious Expression at High School

Graduations: Constitutional Etiquette in a Pluralistic Society, 5 NEXUS 61 (2000); see also Noah

Feldman, A Church-State Solution, N.Y.

TIMES MAG., July 3, 2005, at 28.

159. Keiner, supra note 155, at 457–59.

160. Id.