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

DATE: WEDNESDAY, September 6, 1995                   TAG: 9509060130
SECTION: EDITORIAL                    PAGE: A-6   EDITION: METRO 
SOURCE: 
DATELINE:                                 LENGTH: Medium

THE WORMS ARE STILL OUT OF THE CAN

But with the current U.S. Supreme Court, perhaps even that should not be assumed too readily. This is the court, after all, that ruled 5-4 against the University of Virginia's discretion to avoid funding religious publications with mandatory student fees.

UVa's Board of Visitors late last month amended its guidelines to allow subsidies for publications of a group whose "ideas or viewpoints ... are religious in nature" or any publication that "primarily promotes or manifests a particular belief(s) in or about a deity or an ultimate reality." The language of the amendment was suggested in a letter from Hurd, presumably with the support of Virginia Attorney General Jim Gilmore who, in presumed deference to the religious right's political potence, opposed the state university in the case before the high court.

Problem: The UVa guidelines continue to exclude from funding the publications of other kinds of student groups - fraternities and sororities, honor societies and political organizations. In his letter, Hurd suggested a need for further revisions, to forestall potential legal challenges to the "political activity" exclusion or to the mandatory nature of the fee. (The latter point raises the intriguing question of whether the court would void mandatory fees on the grounds that no student should be forced to help pay for religious publications which the same court has said must be funded.)

A challenge is also possible, Hurd wrote, by litigants seeking to refine the line drawn by the court between the First Amendment's free-speech clause and its injunction against governmental establishment of religion. A key difficulty is the narrowness of the ruling, due to the exceeding fineness of the distinctions on which the high court based its judgment.

Hairsplitting is nothing new in church-state issues, but in the UVa case, it may have been taken to new levels. In cobbling together the slender majority for substituting the court's judgment for that of the university, a mandatory student fee at a public university was held to be not quite the same as public money. The court seemed to think it important, too, that the checks went directly to the printers of the publications rather than passing through their sponsoring organizations.

Highly unlikely that the court would uphold the purchase of communion wafers with taxpayer funds? Sure. But the idea doesn't seem quite so far out as it did before the UVa case, which raises many more questions than it answers.