122
Scalia, J., concurring
II
Second, since we have rejected the only reason that respondent gave for excluding the Club's speech from a forum that clearly included it (the forum was opened to any "us[e] pertaining to the welfare of the community," App. to Pet. for Cert. D1), I do not suppose it matters whether the exclusion is characterized as viewpoint or subject-matter discrimination. Lacking any legitimate reason for excluding the Club's speech from its forum—"because it's religious" will not do, see, e. g., Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 532-533, 546 (1993); Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872, 877-878 (1990)—respondent would seem to fail First Amendment scrutiny regardless of how its action is characterized. Even subject-matter limits must at least be "reasonable in light of the purpose served by the forum," Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U. S. 788, 806 (1985).1 But I agree, in any event, that respondent did discriminate on the basis of viewpoint.
As I understand it, the point of disagreement between the Court and the dissenters (and the Court of Appeals)
1 In this regard, I should note the inaccuracy of Justice Souter's claim that the reasonableness of the forum limitation is not properly before us, see post, at 136, and n. 1 (dissenting opinion). Petitioners argued, both in their papers filed in the District Court, Memorandum of Law in Support of Cross-Motion for Summary Judgment in No. 97-CV-0302 (NDNY), pp. 20-22, and in their brief filed on appeal, Brief for Appellants in No. 98-9494 (CA2), pp. 33-35, that respondent's exclusion of them from the forum was unreasonable in light of the purposes served by the forum. Although the District Court did say in passing that the reasonableness of respondent's general restriction on use of its facilities for religious purposes was not challenged, see 21 F. Supp. 2d 147, 154 (NDNY 1998), the Court of Appeals apparently decided that the particular reasonableness challenge brought by petitioners had been preserved, because it addressed the argument on the merits, see 202 F. 3d 502, 509 (CA2 2000) ("Taking first the reasonableness criterion, the Club argues that the restriction is unreasonable . . . . This argument is foreclosed by precedent").
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