Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: FRIDAY, June 30, 1995 TAG: 9506300079
SECTION: NATIONAL/INTERNATIONAL PAGE: A-1 EDITION: METRO
SOURCE: The New York Times
DATELINE: WASHINGTON LENGTH: Medium
A sharply divided Supreme Court opened the door Thursday to greater government financial support for religious organizations, ruling 5-4 that the University of Virginia was constitutionally required to subsidize a student religious magazine on the same basis as any other student publication.
The majority rejected the university's argument that it would violate the constitutional separation of church and state to use university funds to help pay the printing costs for the explicitly Christian magazine.
To the contrary, Justice Anthony Kennedy said in the majority opinion, once a state-supported university decides to underwrite the private speech of any group of students, it ``may not silence the expression of selected viewpoints'' on the ground that the expression is religious in content. ``Vital First Amendment speech principles are at stake here,'' Kennedy said.
To the dissenters, led by Justice David Souter, another important First Amendment principle was at stake and was compromised by the decision: the principle against direct government financing of religious activity.
``The court today, for the first time, approves direct funding of core religious activities by an arm of the state,'' Souter said. He said it was a ``flat violation'' of the First Amendment's prohibition against government ``establishment'' of religion for an agency of the state ``to support religious evangelism with direct funding.''
The fact that the five-justice majority included an equivocal and obviously troubled concurring opinion by Justice Sandra Day O'Connor left uncertain the court's willingness to carry its analysis beyond the context of this case. To hold O'Connor's vote, Kennedy stressed several aspects of the case that made it distinct: that the money came not directly from the state but from student activity fees; and that the university's regulations provided that the outside printers of student publications, and not the student groups themselves, actually received the allocated activity-fee money.
``This is a far cry from a general public assessment designed and effected to provide financial support for a church,'' Kennedy said.
Nonetheless, some supporters of the ``school choice'' movement, under which families could use government vouchers for tuition at private schools, including religious ones, saw a significant victory in the majority opinion, and the dissenters' evident concern underscored the fact that the constitutional stakes in this dispute were very high.
``This settles the matter that if public benefits are distributed neutrally, it is irrelevant whether people choose to spend them for religious purposes,'' said Kevin J. Hasson, president and general counsel of the Becket Fund for Religious Liberty, a bipartisan and ecumenical public interest law firm. ``That's the game'' in the constitutional debate over school vouchers, Hasson, a supporter of vouchers, said in an interview.
Others were sharply critical of the decision. Barry Lynn, executive director of Americans United for Separation of Church and State, said, ``Evangelism should be supported by the voluntary donations of the faithful, not extracted forcibly from other Americans who don't share those beliefs.''
In her concurring opinion, O'Connor described the case as lying ``at the intersection of the principle of government neutrality and the prohibition on state funding of religious activities.'' She said it was an extremely difficult issue that ``does not admit of categorical answers, nor should any be inferred from the Court's decision today.''
The court was less closely divided over the outcome of another religion case Thursday, ruling 7-2 that the Ku Klux Klan had a free-speech right to erect a cross in a state-owned park in Columbus, Ohio, that operated as a public forum, open to varieties of private expression.
``Our precedent establishes that private religious speech, far from being a First Amendment orphan, is as fully protected under the Free Speech Clause as secular private expression,'' Justice Antonin Scalia said in the majority opinion. ``A free-speech clause without religion would be 'Hamlet' without the prince.''
The decision was based on the facts of the case, Justice O'Connor said, and ``neither trumpets the supremacy of the neutrality principle nor signals the demise of the funding prohibition in Establishment Clause jurisprudence.''
In addition to writing her separate opinion, Justice O'Connor also signed Kennedy's opinion for the court, Rosenberger v. University of Virginia, No. 94-329. The others in the majority were Chief Justice William H. Rehnquist and Justices Antonin Scalia and Clarence Thomas, who also filed a concurring opinion.
Those who voted with Souter in dissent were Justices John Paul Stevens, Ruth Bader Ginsburg and Stephen G. Breyer.
by CNB