Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: TUESDAY, November 1, 1994 TAG: 9411010110
SECTION: NATIONAL/INTERNATIONAL PAGE: A-1 EDITION: METRO
SOURCE: From The Washington Post and The Associated Press
DATELINE: WASHINGTON NOTE: BELOW LENGTH: Long
The Supreme Court agreed Monday to use a case involving the University of Virginia's denial of funds for a student-run Christian magazine to test the Constitution's protection of religious speech.
The case offers the court another chance to make clear how the right to free speech coexists with the Constitution's mandate that prohibits schools and other government entities from benefiting religious organizations.
The constitutional separation of church and state has confounded the court for decades as it has tried to show consideration for religion but not give it any special treatment. Some of the conservative justices have argued that government entities should be allowed greater interaction with religious groups.
While there has been no majority to lower significantly the wall between church and state, most of the justices have acknowledged that more clarity is needed for school and other government officials trying to operate within the law.
UVa refuses to subsidize student-run religious publications. A federal appeals court endorsed the policy in March, ruling that using public funds to support ``the propagation of religious doctrines'' would violate the constitutional provision that government ``shall make no law respecting an establishment of religion.''
That the court decided to review the lower court ruling suggests that some of the justices believe the publication was treated unfairly.
Lawyers for the religious publication noted in their appeal that in the last term Justice Sandra Day O'Connor said the court ``should, in a proper case ... bring our Establishment Clause jurisprudence back to what I think is the proper track - government impartiality, not animosity, towards religion.''
The case began when the school refused to give a portion of regular student-activity funds to Wide Awake, a campus magazine intended ``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 with Jesus Christ means.''
Ronald W. Rosenberger, its editor, launched the magazine in 1990. He sought $5,900 to cover costs, going through an appropriations process used by other student publications. The school said it did not pay for religious activity.
Jewish and Muslim student-group publications were subsidized, according to court papers, but apparently as ``cultural activities,'' rather than ``religious activities.''
Rosenberger sued university officials, contending that the bar to funding for ``religious activities'' violates free-speech rights by depriving a publication of government money based solely on the publication's viewpoint.
He said that if the university decides to provide funds for student publications from the $14-per-semester student activity fee, it cannot make the publication's content or viewpoint a condition for funding.
The 4th Circuit Court of Appeals, based in Richmond, acknowledged that the school was discriminating against religious speech, but it said the university had a compelling interest in maintaining a strict separation of church and state.
The appeals court said the university, in denying the funds, was rightly guided by a 1971 Supreme Court ruling that government action must have a secular purpose, its primary effect must neither advance nor inhibit religion and it must not foster excessive government entanglement with religion.
``Because Wide Awake is a journal pervasively devoted to the discussion and advancement of an avowedly Christian theological and personal philosophy, for the university to subsidize its publication would, we believe, send an unmistakably clear signal that the University of Virginia supports Christian values and wishes to promote the wide promulgation of such values,'' the three-judge appeals panel said.
In appealing the ruling, Rosenberger's lawyers said, ``This decision puts the Establishment Clause on a collision course with the rest of the First Amendment.''
Acknowledging that both sides of the dispute can find support for their position in high court rulings, Rosenberger noted that in June 1993 the court ruled that a public school district may not prevent a church group from using its classrooms after school hours simply because of the group's religious purpose.
State officials say this case is different because it involved payment of government funds, rather than access to physical space.
``This is not a case where government has sought to censor speech,'' said a brief signed by university general counsel James J. Mingle. ``This is a case where government has rightfully declined to subsidize with public funds the preparation and distribution of religiously proselytizing materials.''
Also on Monday, the court:
Refused to hear the appeal of an Alaskan rental agent who cited his religious beliefs in refusing to rent to unmarried couples.
Said it will decide whether a federal fair-housing law allows cities to bar some group homes for the disabled from single-family neighborhoods.
by CNB