
                         Roanoke Times
                 Copyright (c) 1995, Landmark Communications, Inc.

DATE: TUESDAY, November 22, 1994                   TAG: 9411230057
SECTION: EDITORIAL                    PAGE: A6   EDITION: METRO 
SOURCE: 
DATELINE:                                 LENGTH: Medium

HANDS OFF

THE ATTORNEY general of Virginia is both (1) a political office, its holder an independently elected official and prospective gubernatorial nominee; and (2) a professional office, its holder the chief lawyer for state agencies. Attorneys general occasionally discern a conflict between the roles.

But the trouble with James Gilmore's bizarre entry into a U.S. Supreme Court case against the University of Virginia isn't merely that it betrays a political-professional imbalance. It also pursues poor politics with lousy law.

Republican Gilmore's friend-of-the-court enmity to UVa's position no doubt cheers some on the religious right. But the political ground is treacherous. What did he promise to Pat Robertson to assure his nomination for attorney general? Virginia political history suggests the GOP, while it can't afford to ignore the religious right, runs into trouble when its nominees are too closely identified with it.

As a matter of constitutional law, the question boils down to this: Under the First Amendment, must a public university that funds nonreligious publications also fund religious ones? The answer is: of course not, provided the same rules apply to everyone.

Gilmore, however, would have the Supreme Court force UVa to subsidize publications like "Wide Awake," an avowedly Christian magazine for "philosophical and religious expression." (Ironists may note the departure from Virginia states-rights tradition by the ticketmate of a governor who argues for devolving power from Washington to the states.)

Beware the argument that the UVa policy is content-based and therefore wrong. Unless resources are limitless, any policy must somehow decide what to fund and what not. The point isn't to mandate policy, but to leave the university its right to exercise appropriate discretion. And better its policy of not funding any religious (or anti-religious) publications than a policy of having a state agency choose which religion to prefer.

Beware, too, any conclusion that religion is an unmentionable at UVa. The salient distinction between "Wide Awake" and funded student publications isn't that none of the others ever talk about religion. It is that "Wide Awake" is a publication of religious sentiment rather than for the study of religion, religious culture or the impact of religion on society.

Gilmore is wrong. The exercise of religion is protected when the state keeps hands off, not when the state subsidizes it.

by CNB