Religious speech, public money

Christian Century, March 15, 1995

SHOULD A state university use mandatory student-activity fees to subsidize an avowedly religious magazine distributed on campus? When the framers of the Constitution wrote the First Amendment ensuring free speech and barring an establishment of religion, they didn't anticipate such an issue. But 200 years later the U.S. Supreme Court has begun the delicate task of deciding whether spending public money on a religious message is appropriate. The issue has divided the nation's religious communities, and the case itself has been described as potentially one of the most important pieces of church-state litigation in years.

On March 1 the justices heard oral arguments in a case involving the short-lived Christian magazine Wide Awake, published at the University of Virginia in Charlottesville in 1990 by Ronald Rosenberger, a student. Ironically, the University of Virginia was founded by Thomas Jefferson, who was both a defender of free speech and the architect of the separation of church and state. Observers believe that the case could lead to the granting of public funds for religious activities.

Rosenberger, 25, who remains a student at the university, published only four issues of Wide Awake. It included Christian symbols on each page and headlines such as "Homosexuals: Can They Change ... and Should They?" and "The Pope on Marxism and the Free Market." The magazine's stated mission: "To challenge Christians to live, in word and deed, according to the faith they proclaim and to encourage students to consider what a personal relationship to Jesus Christ means."

When Rosenberger sought about $6,000 in student-activity money for Wide Awake, school officials denied the request, citing university guidelines barring funding of religious groups. Church-state expert Michael McConnell, a University of Chicago Law School professor and Rosenberger's representative before the Supreme Court, has argued that when University of Virginia officials turned down Rosenberger's request they discriminated against him solely on the basis of the magazine's religious speech.

McConnell also observed that during the same year that university officials denied Rosenberg's request, they agreed to petitions for student activity funds made by the Jewish Law Students Association and the Muslim Students Association. Rosenberger has said that he and other students at the school are not seeking special benefits but are "simply seeking equal access to benefits made available to everybody else."

Rosenberger sued the university, contending that his free speech and press rights had been violated and that he was the victim of discrimination based on his magazine's religious content. He lost in federal district court and the Fourth Circuit Court of Appeals. The appeals court held that providing money to Wide Awake would be "a direct and substantial government subsidy of religion."

When the two sides presented their oral arguments to the court, McConnell argued that the First Amendment does not prohibit all state support of religion, but only requires that a public institution resolving to underwrite religious activity must do so from a position of neutrality with respect to religion and with indifference regarding how the funds are spent. John C. Jeffries Jr., the University of Virginia's council and a teacher at the university's law school, maintained that the case is not an issue of church-state separation but has more to do with the choices the university was free to make in disbursing its limited funds. According to Jeffries, universities routinely make considered decisions about funding student activities. "This entire case involves whether we write [student religious groups] a check. In giving out scarce money, choices must be made," Jeffries said.

Several justices, most prominent among them conservative Antonin Scalia, indicated sympathy for McConnell's argument in favor of greater state accommodation of religion. Scalia said that Rosenberger's magazine merely presented a religious viewpoint, an activity which should not exclude it from public support. "They are simply espousing ideas without proselytizing. This [the magazine] is not a church," Scalia argued. Justice Ruth Bader Ginsburg, recognized as one of the court's moderates, expressed a different position when she indicated that the university was following the First Amendment in denying funding to the magazine. "The court has never authorized direct funding of religious activity," she noted.

As the case moves through the Supreme Court, religious groups are choosing up sides, pointing to it as an important test of how far the government will allow church and state to intermingle. Said Steven McFarland, director of the Christian Legal Society's Center for Law and Religious Freedom: "The First Amendment forbids, rather than requires, discriminating against citizens because of their religious views. Nobody has a right to have their views published with public funds, but when the government chooses to subsidize private free speech in the public square, it cannot disqualify those with a religious perspective." According to Douglas Laycock, also a member of the CLS and the author of a friend-of-the-court brief on behalf of Rosenberger, "The University [of Virginia] must preserve neutrality in religious matters by either subsidizing the full range of student speech or subsidiz[ing] none at all."