The difference religion makes: reflections on Rosenberger - the case of Ronald W. Rosenberger et al. v. Rector and Visitors of the University of Virginia et al - Cover Story

Christian Century, March 13, 1996 by Winnifred Fallers Sullivan

A GROUP OF STUDENTS at the University of Virginia founded Wide Awake magazine with the avowed purpose of challenging Christians "to live, in word and deed, according to the faith they proclaim and to encourage students to consider what a personal relationship with Jesus Christ means." The masthead of every issue quotes from Paul's Letter to the Romans: "The hour has come for you to awake from your slumber, because our salvation is nearer now than when we first believed." The magazine contains a wide range of articles about contemporary student life interpreted from a "Christian perspective."

Is this magazine engaged in "speech" or is it engaged in "religion"? In other words, does this magazine simply provide a "Christian viewpoint" on the issues of the day, or is this magazine "preaching the word"? Is there a difference? How do we tell? Does the difference matter?

These questions turned into pressing constitutional issues when Wide Awake became the focus of a Supreme Court case last year. Is it constitutional for the University of Virginia to subsidize the publication of such a magazine? The university thought not. Is it constitutional for the university to refuse to subsidize the magazine when it subsidizes other student publications? Wide Awake thought not. These are difficult questions whose answers are deeply and necessarily rooted in the particulars of American religious history and experience.

The First Amendment to the U.S. Constitution provides as follows: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." It is worth returning often to these words because they are so often paraphrased to a partisan end. It is important to return to these words not because their meaning is transparent or easily applied--the meaning of "establishment" is hotly contested, for example--but because those are the words in the Constitution. They have a particular history, and we have an obligation to be fastidious in our use of them.

An extraordinary number of books and articles have been written attempting to explain the meaning of the First Amendment both for those who wrote and ratified it in 1791 and for us today. I will focus here on three alternative readings of the religion clauses as represented by the current Supreme Court in its June 1995 decision on Wide Awake in the case of Ronald W. Rosenberger et al. v. Rector and Visitors of the University of Virginia et al. The opinions of the justices dramatically illustrate a crucial issue in the current debate about religion in public life. I will suggest that more serious attention needs to be given to what is meant by "religion" than is being given by many of its ostensible defenders.

The University of Virginia required all students to pay a student activities fee of $14 per semester. These fees were pooled and used to finance certain student activities, including the publication of student magazines. Any student group that qualified as a Contracted Independent Organization according to the rules of the university could submit certain of its bills to be paid out of the Student Activities Fund. "Student news, information, opinion, entertainment or academic media groups" were specifically named as eligible for subsidy as long as they did not include "religious activities, philanthropic contributions and activities, political activities or activities that would jeopardize the university's tax-exempt status." A "religious activity" was defined as any activity that "primarily promotes or manifests a particular belief in or about a deity or an ultimate reality." These rules were intended by the university to protect it from the charge that it was unconstitutionally "establishing" religion.

RONALD ROSENBERGER, the lead plaintiff, was an undergraduate at the university in 1990-91. He was a member of Wide Awake Productions (WAP), the student group that had been founded to publish Wide Awake magazine and had qualified as a Contracted Independent Organization. WAP applied to the Student Council and was denied payment of its publication costs for Wide Awake on the grounds that it was a "religious activity."

WAP appealed unsuccessfully within the university, arguing, according to free-speech principles, that the university could not refuse to fund Wide Awake based on its editorial perspective or ideology. Rosenberger then filed an action in federal district court alleging that the university's denial of funds violated the freedom of speech and press, free exercise of religion and equal-protection provisions of the federal and state constitutions. Rosenberger lost in both the district court and the Court of Appeals.

THE SUPREME COURT reversed the lower court opinions, deciding for the plaintiff. It found that the university had violated the First Amendment free-speech clause when it refused to pay the costs of publishing Wide Awake. Four opinions were written in the case. Justice Kennedy wrote for the five-person majority (which included Chief Justice Rehnquist and Justices O' Connor, Scalia and Thomas), and Justices O'Connor and Thomas each wrote concurring opinions. Justice Souter wrote an opinion for the four dissenting justices (who included Justices Stevens, Ginsburg and Breyer), arguing that denial of funding was required by the establishment clause. The number and length of the opinions is typical of recent First Amendment cases and reveals the deep divisions on the court with respect to religion cases.