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O'CONNOR, J., dissenting

factors support this conclusion. The Immigration and Nationality Act (INA) contains a general severability clause, which provides: "If any particular provision of this Act, or the application thereof to any person or circumstance, is held invalid, the remainder of the Act and the application of such provision to other persons or circumstances shall not be affected thereby." §406, 66 Stat. 281; see note following 8 U. S. C. § 1101, p. 38, "Separability." We have concluded that this severability clause "is unambiguous and gives rise to a presumption that Congress did not intend the validity of the [INA] as a whole, or any part of the [INA], to depend upon whether" any one provision was unconstitutional. INS v. Chadha, 462 U. S. 919, 932 (1983).

Title 8 U. S. C. § 1421(d), which states that "[a] person may only be naturalized as a citizen of the United States in the manner and under the conditions prescribed in this subchapter and not otherwise," has no effect on the operation of the INA's general severability clause in this case. Section 1421(d) governs only naturalization, which the statute defines as "the conferring of nationality of a state upon a person after birth," § 1101(a)(23), whereas §§ 1401(g) and 1409 deal with the transmission of citizenship at birth, see § 1401 ("The following shall be nationals and citizens of the United States at birth . . ."). Further, unlike the INA's general severability clause, § 1421(d) does not specifically address the scenario where a particular provision is held invalid. Indeed, the INS does not even rely on § 1421(d) in its brief.

Nor does our decision in INS v. Pangilinan, 486 U. S. 875 (1988), preclude severance here. In Pangilinan, this Court held that courts lack equitable authority to order the naturalization of persons who did not satisfy the statutory requirements for naturalization. Id., at 883-885. Petitioners in the instant case, however, seek the exercise of no such equitable power. Petitioners instead seek severance of the offending provisions so that the statute, free of its constitutional defect, can operate to determine whether citizen

O'CONNOR, J., dissenting

ship was transmitted at birth. Cf. Miller, supra, at 488-489 (BREYER, J., dissenting).

In addition to the severance clause, this Court has often concluded that, in the absence of legislative direction not to sever the infirm provision, "extension, rather than nullification," of a benefit is more faithful to the legislative design. Califano v. Westcott, 443 U. S. 76, 89-90 (1979); see also Weinberger v. Wiesenfeld, 420 U. S. 636 (1975); Frontiero, 411 U. S., at 691, n. 25. The choice of extension over nullification also would have the virtue of avoiding injury to parties who are not represented in the instant litigation. And Congress, of course, remains free to redesign the statute in a manner that comports with the Constitution.

As to the question of deference, the pivotal case is Fiallo v. Bell, 430 U. S. 787 (1977). Fiallo, however, is readily distinguished. Fiallo involved constitutional challenges to various statutory distinctions, including a classification based on the sex of a United States citizen or lawful permanent resident, that determined the availability of a special immigration preference to certain aliens by virtue of their relationship with the citizen or lawful permanent resident. Id., at 788-792; see also Miller, supra, at 429 (opinion of STEVENS, J.). The Court, emphasizing "the limited scope of judicial inquiry into immigration legislation,” 430 U. S., at 792, rejected the constitutional challenges. The Court noted its repeated prior emphasis that "over no conceivable subject is the legislative power of Congress more complete than it is over' the admission of aliens." Ibid. (quoting Oceanic Steam Nav. Co. v. Stranahan, 214 U. S. 320, 339 (1909)).

The instant case is not about the admission of aliens but instead concerns the logically prior question whether an individual is a citizen in the first place. A predicate for application of the deference commanded by Fiallo is that the individuals concerned be aliens. But whether that predicate obtains is the very matter at issue in this case. Cf. Miller,

O'CONNOR, J., dissenting

523 U. S., at 433, n. 10 (opinion of STEVENS, J.) (“[T]he Government now argues . . . that an alien outside the territory of the United States has no substantive rights cognizable under the Fifth Amendment. Even if that is so, the question to be decided is whether petitioner is such an alien or whether, as [petitioner] claims, [petitioner] is a citizen. Thus, we must address the merits to determine whether the predicate for this argument is accurate" (internal quotation marks and citation omitted)). Because §§ 1401 and 1409 govern the conferral of citizenship at birth, and not the admission of aliens, the ordinary standards of equal protection review apply. See id., at 480-481 (BREYER, J., dissenting).

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No one should mistake the majority's analysis for a careful application of this Court's equal protection jurisprudence concerning sex-based classifications. Today's decision instead represents a deviation from a line of cases in which we have vigilantly applied heightened scrutiny to such classifications to determine whether a constitutional violation has occurred. I trust that the depth and vitality of these precedents will ensure that today's error remains an aberration. I respectfully dissent.

Syllabus

GOOD NEWS CLUB ET AL. v. MILFORD
CENTRAL SCHOOL

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

No. 99-2036. Argued February 28, 2001-Decided June 11, 2001 Under New York law, respondent Milford Central School (Milford) enacted a policy authorizing district residents to use its building after school for, among other things, (1) instruction in education, learning, or the arts and (2) social, civic, recreational, and entertainment uses pertaining to the community welfare. Stephen and Darleen Fournier, district residents eligible to use the school's facilities upon approval of their proposed use, are sponsors of the Good News Club, a private Christian organization for children ages 6 to 12. Pursuant to Milford's policy, they submitted a request to hold the Club's weekly afterschool meetings in the school. Milford denied the request on the ground that the proposed use-to sing songs, hear Bible lessons, memorize scripture, and pray-was the equivalent of religious worship prohibited by the community use policy. Petitioners (collectively, the Club), filed suit under 42 U. S. C. § 1983, alleging, inter alia, that the denial of the Club's application violated its free speech rights under the First and Fourteenth Amendments. The District Court ultimately granted Milford summary judgment, finding the Club's subject matter to be religious in nature, not merely a discussion of secular matters from a religious perspective that Milford otherwise permits. Because the school had not allowed other groups providing religious instruction to use its limited public forum, the court held that it could deny the Club access without engaging in unconstitutional viewpoint discrimination. In affirming, the Second Circuit rejected the Club's contention that Milford's restriction was unreasonable, and held that, because the Club's subject matter was quintessentially religious and its activities fell outside the bounds of pure moral and character development, Milford's policy was constitutional subject discrimination, not unconstitutional viewpoint discrimination.

Held:

1. Milford violated the Club's free speech rights when it excluded the Club from meeting after hours at the school. Pp. 106-112.

(a) Because the parties so agree, this Court assumes that Milford operates a limited public forum. A State establishing such a forum is not required to and does not allow persons to engage in every type of

Syllabus

speech. It may be justified in reserving its forum for certain groups or the discussion of certain topics. E. g., Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819, 829. The power to so restrict speech, however, is not without limits. The restriction must not discriminate against speech based on viewpoint, ibid., and must be reasonable in light of the forum's purpose, Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U. S. 788, 806. Pp. 106–107.

(b) By denying the Club access to the school's limited public forum on the ground that the Club was religious in nature, Milford discriminated against the Club because of its religious viewpoint in violation of the Free Speech Clause. That exclusion is indistinguishable from the exclusions held violative of the Clause in Lamb's Chapel v. Center Moriches Union Free School Dist., 508 U. S. 384, where a school district precluded a private group from presenting films at the school based solely on the religious perspective of the films, and in Rosenberger, where a university refused to fund a student publication because it addressed issues from a religious perspective. The only apparent difference between the activities of Lamb's Chapel and the Club is the inconsequential distinction that the Club teaches moral lessons from a Christian perspective through live storytelling and prayer, whereas Lamb's Chapel taught lessons through films. Rosenberger also is dispositive: Given the obvious religious content of the publication there at issue, it cannot be said that the Club's activities are any more "religious" or deserve any less Free Speech Clause protection. This Court disagrees with the Second Circuit's view that something that is quintessentially religious or decidedly religious in nature cannot also be characterized properly as the teaching of morals and character development from a particular viewpoint. What matters for Free Speech Clause purposes is that there is 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. Because Milford's restriction is viewpoint discriminatory, the Court need not decide whether it is unreasonable in light of the forum's purposes. Pp. 107-112.

2. Permitting the Club to meet on the school's premises would not have violated the Establishment Clause. Establishment Clause defenses similar to Milford's were rejected in Lamb's Chapel, supra, at 395-where the Court found that, because the films would not have been shown during school hours, would not have been sponsored by the school, and would have been open to the public, not just to church members, there was no realistic danger that the community would think that the district was endorsing religion-and in Widmar v. Vincent, 454 U. S. 263, 272-273, and n. 13-where a university's forum was

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