Liberty Counsel filed its Initial Brief with the Eighth Circuit Court of Appeals in defense of an equal access policy of the South Iron School District ("District") that permits the Gideons to distribute Bibles in the same manner other non-religious organizations are permitted to distribute secular literature. Liberty Counsel represents the District.
In September 2006, the ACLU filed a federal lawsuit against the District to stop the Gideons from providing Bibles for public school students. Federal district Judge Catherine Perry issued an order prohibiting the distribution of any Bible, which she described as an "instrument of religion." Although the District has an equal access policy that treats the distribution of secular and religious literature outside of class on an equal basis, Judge Perry also ruled the District's open access policy unconstitutional. The ruling presented a novel (and unconstitutional) theory that a private third party (like the ACLU) must have the opportunity to veto the distribution request of the private applicant. The veto power, the judge wrote, must be provided to veto religious, but not secular, literature.
The District has a long-standing open access policy that allows many community groups to present literature and information to students at its schools, outside the classroom during non-instructional time. The many diverse groups include the Army Corps of Engineers, Red Cross, Girl Scouts, Boy Scouts, Iron County Health Department, Missouri Water Patrol, Missouri Highland Healthcare, and Union Pacific Railroad. The distribution of Bibles or religious literature is treated the same as secular literature under the policy, but Judge Perry ruled that religious literature, particularly the Bible, may not be treated the same. If a private third party, like the ACLU, cannot veto the request before the distribution, then, she ruled, the policy must be stricken. No court in the country has provided a private right of veto over private religious speech.
The ACLU might not like the fact that equal access also means equal treatment for religious speech, but the Constitution requires equal treatment. The First Amendment protects private religious viewpoints. Hecklers may heckle but they may not veto private religious speech. The Bible is not radioactive. Religious viewpoints have Constitutional protection.