"Prayer may be slowly returning to the schoolhouse. For 40 years, ever since the Supreme Court decision in 1962 (Engel v. Vitale, 370 U.S. 421), prayer has been excluded from the public school classroom. Many schools even prohibit religious groups from using classrooms after school, even though they give full access to other community groups.

Justice Clarence Thomas, in a brilliant 6-3 decision, ended some discrimination against religion in Good News Club v. Milford Central School, No. 99-2036 (June 11, 2001). In allowing prayer inside schools, he reversed both the district court and Second Circuit of Appeals, which had sided with the school in excluding it.

The Good News Club is a Christian organization for children ages 6 to 12 that sought to use meet in Milford Central School after regular school hours in order to sing songs, hear Bible lessons, memorize Scripture, and pray. Under a community-use policy, the school regularly allowed other groups, which could include 4-H clubs and the Boy Scouts, to meet at the school to discuss moral themes, such as Aesop's Fables.

But those who preach tolerance are usually intensely intolerant of religion, particularly with respect to schools. The normally conservative Fifth Circuit, for example, recently upheld a school prohibition against religious instruction after hours, even though non-religious speech was permitted. Campbell v. St. Tammany Parish School Bd., 206 F.3d 482 (CA5 2000).

Fifth Circuit Judge Edith Jones (sometimes mentioned as a potential Supreme Court nominee) dissented from the court's denial to rehear that decision en banc. Judge Jones described her colleagues' exclusion of religious speech as "the very essence of viewpoint discrimination." She was vindicated by Justice Thomas's Good News decision.

Justice Thomas declared: "We hold that the exclusion [of the Good News Club] constitutes viewpoint discrimination" and thus is unconstitutional. "What matters for purposes of the Free Speech Clause is that we can see no logical difference in kind between the invocation of Christianity by the Club and the invocation of teamwork, loyalty, or patriotism by other associations to provide a foundation for their lessons."

In essence, Justice Thomas confirmed that the First Amendment's Free Speech Clause protects religious speech as much as any other type of speech. If schools allow other types of speech after hours, then it cannot exclude speech just because it is religious.

Justice Scalia joined Justice Thomas's majority opinion and added a noteworthy concurrence. In rejecting the school's argument that children would feel coercive pressure to participate in the Good News Club, Justice Scalia said that "the compulsion of ideas and the private right to exert and receive that compulsion (or to have one's children receive it) is protected by the Free Speech and Free Exercise Clauses."

He also rebutted a dissent by Justice Souter, showing how Souter contradicted one of his earlier opinions. Justice Souter had earlier argued that courts should not try to compare different theologies, but in Good News he argued, without precedent, that there should be a lesser right for religious speech if there is any proselytizing or worship because of the possibility of children having a Christian conversion.

Justice Souter's real objection was to the popularity of the Good News program. He complained that "when meetings were held in a community church, 8 or 10 children attended; after the school became the site, the number went up three-fold."

Justice Souter needs to be reminded that popularity is not a violation of the Constitution.