Yet another case, O.T. v. Frenchtown Elementary School Dist. Bd. of Ed., 2006 WL 3579215 (D.N.J. Dec. 11), finds that the government acted unconstitutionally in excluding a private religious speaker from a government-run program. Here, the school district was running an after-school talent show, which wasn't part of the school curriculum. The show was apparently open to all "G-rated" acts, and the context strongly suggests that the acts were seen by the audience as the performer's act, not the school's. Yet the school excluded O.T. from singing Awesome God (which I take is this song) on the grounds that the lyrics constituted religious proselytizing, and that allowing the lyrics would violate the Establishment Clause.

The court disagreed. The program, the court said, was a designated public forum for student expression; and excluding a song because it conveyed a message of advocacy for the singer's religious beliefs was viewpoint-based, and thus presumptively unconstitutional. And the court rejected the school's argument that this presumption was rebutted because allowing the song would have violated the Establishment Clause: The song would have been seen as the student's own speech, not the school's speech, and thus wouldn't be an unconstitutional endorsement of religion by the government.

It seems to me the court got it quite right. I suspect it also seems this way to the Department of Justice and to the New Jersey ACLU, both of which filed amicus briefs on behalf of the plaintiff (here's the ACLU brief).

Thanks to Allen Asch (here, in his capacity as operator of ACLU Fights for Christians) for the pointer.