120
Scalia, J., concurring
V
When Milford denied the Good News Club access to the school's limited public forum on the ground that the Club was religious in nature, it discriminated against the Club because of its religious viewpoint in violation of the Free Speech Clause of the First Amendment. Because Milford has not raised a valid Establishment Clause claim, we do not address the question whether such a claim could excuse Milford's viewpoint discrimination.
* * *
The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
Justice Scalia, concurring.
I join the Court's opinion but write separately to explain further my views on two issues.
I
First, I join Part IV of the Court's opinion, regarding the Establishment Clause issue, with the understanding that its consideration of coercive pressure, see ante, at 115, and perceptions of endorsement, see ante, at 115, 117-118, "to the extent" that the law makes such factors relevant,
several facts, see post, at 140, and Justice Breyer believes that development of those facts could yet be dispositive in this case, see post, at 128 (opinion concurring in part), none of these facts is relevant to the Establishment Clause inquiry. For example, Justice Souter suggests that we cannot determine whether there would be an Establishment Clause violation unless we know when, and to what extent, other groups use the facilities. When a limited public forum is available for use by groups presenting any viewpoint, however, we would not find an Establishment Clause violation simply because only groups presenting a religious viewpoint have opted to take advantage of the forum at a particular time.
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