134
Souter, J., dissenting
could (and did) permissibly exclude from its limited public forum proselytizing religious speech that does not rise to the level of actual worship. I would therefore affirm the judgment of the Court of Appeals.
Even if I agreed with Part II of the majority opinion, however, I would not reach out, as it does in Part IV, to decide a constitutional question that was not addressed by either the District Court or the Court of Appeals.
Accordingly, I respectfully dissent.
Justice Souter, with whom Justice Ginsburg joins, dissenting.
The majority rules on two issues. First, it decides that the Court of Appeals failed to apply the rule in Lamb's Chapel v. Center Moriches Union Free School Dist., 508 U. S. 384 (1993), which held that the government may not discriminate on the basis of viewpoint in operating a limited public forum. The majority applies that rule and concludes that Milford violated Lamb's Chapel in denying Good News the use of the school. The majority then goes on to determine that it would not violate the Establishment Clause of the First Amendment for the Milford School District to allow the Good News Club to hold its intended gatherings of public school children in Milford's elementary school.
of different types of religious speech, the Rosenberger Court clearly believed that the first type of religious speech predominated in Wide Awake. It described that group's publications as follows: "The first issue had articles about racism, crisis pregnancy, stress, prayer, C. S. Lewis' ideas about evil and free will, and reviews of religious music. In the next two issues, Wide Awake featured stories about homosexuality, Christian missionary work, and eating disorders, as well as music reviews and interviews with University professors." Id., at 826.
In contrast to Wide Awake's emphasis on providing Christian commentary on such a diverse array of topics, Good News Club meetings are dominated by religious exhortation, see post, at 137-138 (Souter, J., dissenting). My position is therefore consistent with the Court's decision in Rosenberger.
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