The Supreme Court on June 29 handed down two decisions in cases involving religion. In Rosenberger v. the Rector and Visitors of the University of Virginia it reviewed a decision of the U.S. Court of Appeals for the Fourth Circuit which had held that though the University (a state entity) could fund student journals of opinion, the Establishment Clause of the Constitution forbade its funding a journal of opinion that advocated Christian religious views. That court admitted that this denial of funding burdened the freedom of speech of the students who published the religious journal, but said that enforcement of Establishment Clause requirements was a superior interest to be protected. The Supreme Court reversed the Court of Appeals, holding in a 5-4 vote that the University had violated the Constitution through “viewpoint discrimination” and that the funding did not violate the Establishment Clause.
In the second case, Capitol Square Review and Advisory Board v. Pinette, a state agency contended that the Establishment Clause would be violated by the Ku Klux Klan’s placing a cross on a public square during the Christmas season. The Supreme Court, by a 7-2 vote, held that this did not violate the Establishment Clause and that to forbid the Klan to place the cross would violate its free speech rights.-The Editors
Gerard V. Bradley
When the New York Times -the sergeant-at-arms of the “naked public square”-said that the Supreme Court “had blown a hole in the wall of separation,” I knew the justices had done something right. From the turgid editorial I could tell only that aggrieved believers won in Rosenberger and Pinette , and that the Times was mad about it. Later, I read the full opinions, and discovered that angering the Times was all the justices had done right. It could have been worse; the believers might have lost. But a careful reading of the decisions makes clear that blowing “a hole in the wall” of separation-if that is even an apt description of the two cases-won’t do. We need to raze the whole structure and lay a new foundation or, better, go back to that laid by the Founders.
In neither of these believers’ “victories” was the plaintiff’s religion an asset; Rosenberger and Pinette won despite their beliefs. Had they been, say, advocates of free trade or defenders of an endangered species, the evenhanded treatment they sought would have been granted by any bureaucrat or judge with an iota of constitutional knowledge. Only because of the religious content of their advocacy were theirs interesting cases.
Rosenberger and Pinette , as the Court analyzed them, were basically free speech cases. The question in each was whether, notwithstanding the general constitutional principle that forbids government discrimination among viewpoints, how much worse does the Establishment Clause allow (or require) states to treat believers than nonbelievers? The question, put differently by Justice Scalia, is whether piety is on a par with pornography, whether (in my words) the Madonna is on a par with Madonna. A minority of the Court-Scalia, Thomas, Kennedy, and Rehnquist-answered in the affirmative. But none of the minority, judging just from these opinions, holds that piety must be treated better than pornography. None affirms the proposition asserted by, for example, Dignitatus Humanae , that public authority must foster and favor the religious life of the people-a precept given acute urgency by Pope John Paul II’s teaching in Veritatis Splendor that secularism threatens the essential foundation of all social order. Anyway, that the Madonna is “above” Madonna was not on these justices’ radar screens. And they are the good guys.
There is just one important development in these cases, and it is good news for the Times : Justice Breyer is a strict separationist. A solid majority of the Supreme Court, we know now, holds that the Constitution not only permits but sometimes requires that piety be treated worse than pornography. Breyer subscribes (with O’Connor, Ginsburg, Souter, and Stevens) to the so-called “endorsement” test for the compatibility of religion and public life. This Establishment Clause “test” has been around since the first nativity scene case in 1982. It seemed at times to command a bare majority of the Court, always including Harry Blackmun. With Blackmun’s retirement last year, its ascendancy was in doubt. No more. The endorsement test is the master principle of all church/state jurisprudence. It is lethal stuff, indeed.
The endorsement test holds that public authority may do nothing that might be construed as a sign that religion is a good thing, that religion is a component of human flourishing in a way that something else (assertedly comparable, which the justices call “nonreligion” or “irreligion”) is not. This neutrality is an instance of a broader neutrality about the good life that the justices, since around 1970, have brazenly but falsely proclaimed to be our constitutional ideal. The broad neutrality brought us abortion-on-demand and will, in all likelihood, soon christen assisted suicide and homosexual marriage as constitutional rights.
This is sobering enough. The narrower neutrality between religion and irreligion makes our jurisprudence of religious liberty incoherent. Just try to work out a coherent account or justification for religious liberty while denying yourself as a premise any positive evaluation of religion. And, if the Court really means to be “neutral”-to neither favor nor disfavor religion-how come the test is not the other way around: government may do nothing whatsoever that might be taken by some citizen(s) as a sign of hostility or disfavor to religion?
O f some additional note is Justice Souter’s emergence as the intellectual leader of the “endorsement” crowd. Souter met the conservative justices on their preferred ground of polemical engagement: “original understanding,” in this case of the Establishment Clause. Souter’s historical mini-essay in Rosenberger aimed to show that the Establishment Clause, as understood in 1790, prohibited even completely impartial aid to religion. (“Impartial” means without preference between or among different religions.) If this “nonpreferential” reading were accepted, the bottom would fall out of the endorsement test, and we would all be a lot better off. And I am prepared to argue, as have Scalia, Thomas, and Rehnquist, that the sect-impartiality reading is the original understanding.
What was Souter’s counterargument? Souter served up in Rosenberger the same junk history that Justice Hugo Black served up in Everson , the first Establishment Clause case, back in 1947. The key move here is not to talk about the First Amendment at all, but to talk instead about something James Madison wrote in a Virginia political contest several years earlier.
Souter wrote that James Madison’s “authority on questions about the meaning of the Establishment Clause is well settled.” Settled by whom? By the Court. Souter cited only Everson and a footnote (in a 1973 case) that itself relied upon Everson . Everson never addressed the meaning of the Establishment Clause, save by assertion (now seconded by Souter) that Madison’s “Memorial and Remonstrance,” a petition he circulated in 1785 against a proposed tax for teachers of the Christian religion, meant the same thing the Establishment Clause would later be understood to mean. Souter asserted that the “Memorial and Remonstrance” played “the central role” in defeating the Virginia bill and “framed the debate upon which the Religion Clauses stand.” Both claims were demonstrably false when first made in Everson , and no amount of judicial repetition can make them true.
In fact, less than one-fifth of all Virginians who signed petitions against the tax signed Madison’s M & R. Many Virginians who favored government aid to religion voted against the bill, too. They could not afford the proposed assessment. (Even Justice Rutledge conceded in Everson that poverty was a contributing factor to the assessment’s defeat.) Most generally, evangelical religion defeated the assessment, and neither evangelicals nor anybody else in Virginia opposed all aid and encouragement to religion, even if they opposed or could not afford this tax. Madison voted for a religious incorporation bill soon afterwards, even though (unlike the assessment plan) it preferred the Episcopal Church and did not purport to be sect-neutral. He explained the vote as a political sop, a “partial gratification” to disappointed supporters of the general assessment.
Still, we are invited to conclude that because Madison (and Jefferson) opposed the assessment, prominent Virginians generally opposed it. Let us count some notable heads to test that proposition. Add to the anti-assessment side of the ledger George and Wilson Nicholas, George Mason (who attended the Philadelphia Convention in 1787), and Andrew Moore, a member of the First Congress which proposed the Establishment Clause to the states for ratification. On the other-pro-assessment-side were George Washington, John Marshall, Patrick Henry (the most powerful politician in Virginia at the time), then-Governor Benjamin Harrison, Edward Pendleton, Edmund Randolph (Attorney General in the Washington Administration), John Page (a colleague of Madison’s in the First Congress), John Frances Mercer (another delegate to the 1787 Convention), and one of Virginia’s first Senators, Richard Henry Lee. Clearly in agreement with the bill’s principle because of their contemporaneous support of a different aid-to-religion bill were Virginia’s other Senator, William Grayson, and future president James Monroe.
Senator Lee’s approval, expressed in a letter to Madison early in the controversy, illustrates the pro-assessment rationale:
Refiners may weave as fine a web of reason as they please, but the experience of all times shows Religion to be the guardian of morals-and he must be a very inattentive observer in our Country, who does not see that avarice is accomplishing the destruction of religion, for want of a legal obligation to contribute something to its support. The declaration of rights [in the Virginia Constitution], it seems to me, rather contends against forcing modes of faith and forms of worship, than against compelling contribution for the support of religion in general.
Lee’s distinction between state acts that affirm the truth of theological tenets or force acts of worship on people and those that mandate general support of religion is the indispensable core of any understanding of what the Founders were up to, and to any understanding of the constitutional tradition up to World War II. It is central, I would argue, to any sound approach to church-state questions in our day. The distinction is completely lost on the current Court, as is evident once again in the “victories” of Rosenberger and Pinette.
Gerard V. Bradley is Professor of Law at the University of Notre Dame.
Nathan Lewin
The Hasidim of Lubavitch were enjoined by their late Rebbe to teach the values of Jewish religious observance to Jews all over the world. In far-flung corners of the globe, emissaries of Lubavitch (also known as Chabad) establish synagogues, provide kosher food, teach Hebrew and Bible, encourage prayer and other religious practices, and erect large candelabra-menorahs-to commemorate the Jewish eight-day holiday of Hanukkah (which frequently coincides with Christmas).
When I was first asked to represent Lubavitch and defend the inclusion of its menorah in the “holiday display” erected by the City of Pittsburgh each December, the conventional wisdom was to play down the religious significance of the menorah. In a lawsuit challenging the constitutionality of a menorah display in Los Angeles, Chabad’s local lawyer had argued that the menorah was a secular symbol of freedom and an emblem of the secular State of Israel. There was testimony to the same effect in the trial record of the Pittsburgh case.
That was, however, a demeaning characterization of an object that is used for religious observance and that was displayed by Chabad’s rabbis to convey the distinctly religious message that Jews should recognize, respect, and celebrate their own holiday even as Christians celebrate their holiday. So our brief in the Pittsburgh religious display case ( Allegheny County v. ACLU , 1989) candidly described the menorah as a religious symbol. We argued that the minority’s religious symbol could constitutionally be included in a municipal display because it was overshadowed by the Christmas tree that stood adjacent to it in Pittsburgh’s “Season of Lights” exhibit on the stairs of its City Hall.
We won that case, with Justices Blackmun and O’Connor agreeing that the city did not endorse or otherwise establish Judaism as Pittsburgh’s official city religion by permitting an eighteen-foot menorah to stand beside the forty-five-foot Christmas tree. But Pittsburgh had a surprise in store for Chabad. Its Roman Catholic mayor had died while the case was being litigated to the Supreme Court, and a Jewish mayor replaced him. The new administration announced that it would not permit a menorah on the steps of City Hall.
Chabad’s litigation strategy shifted. Rather than defending the constitutional right of municipalities to permit the erection of menorahs, we were forced to fight government agencies that selectively forbade menorahs because they are religious symbols.
Here again, it was tempting to claim that menorahs are as secular as Christmas trees are said to be, or are no more religious than displays cheering local football and basketball teams. But Chabad made no such argument. Instead, we argued that private religious symbols cannot be denied access to a public forum.
Our first pass at this argument came in 1989-the same year that the Pittsburgh case was decided-when we won an order from Justice Brennan directing Pittsburgh to permit the menorah, literally minutes before Hanukkah was to begin. The City tried unsuccessfully during the holiday to have the full Supreme Court reverse Justice Brennan ( Chabad v. Pittsburgh , 1989).
What constitutional provision confers on Chabad rabbis the right to teach Jews about Hanukkah by displaying a menorah in a public park? A visitor from Mars, unfamiliar with Supreme Court precedent but able to read the text of the Constitution, would think that the eleventh through sixteenth words of the First Amendment-language that tells government it may not prohibit “the free exercise of religion”-would be relevant, and might even be dispositive. But there has been no indication from any Supreme Court majority, or even from the lower federal courts, that the Free Exercise Clause confers any preferred constitutional status on private religious expression or observance.
And so we moved on to the next six words of the First Amendment-the language that prohibits “abridging the freedom of speech.” A menorah display, we said, is speech-albeit religious speech-and a government agency may not select, on the basis of content, which private speech it will permit in a public forum generally accessible to the public. We then litigated and won the right to place menorahs, notwithstanding recalcitrant government agencies, in a downtown public square in Cincinnati and in the rotunda of the Georgia State Capitol in Atlanta.
The Ku Klux Klan seized on the Cincinnati menorah ruling and the permission given by Columbus, Ohio to Chabad to display a menorah and invoked them as grounds for erecting a cross on the public square. And on the last day of its 1994 Term, the Supreme Court gave organized religion a great victory by upholding the Klan’s constitutional right to display what it claimed was a religious message in a public forum.
That decision, along with the more contentious ruling in the Rosenberger case, vindicates Chabad’s litigation tactics. It arrives, far more tortuously than necessary, at the right result. But opinions in both rulings evince a fear of, and hostility towards, religion that still pervades federal judges’ evaluation of the rights of religious observers.
Religion won these two cases because it dressed up as speech. And speech has thus been given broader constitutional protection than the “free exercise of religion.” Justice Scalia’s opinion in the Klan case observed that the three justices who concurred separately in the result (as well as Justices Stevens and Ginsburg who dissented) “exiled private religious speech to a realm of less-protected expression heretofore inhabited only by sexually explicit displays and commercial speech.” This, he correctly noted, “would be merely bizarre, were religious speech simply as protected by the Constitution as other forms of private speech; but it is outright perverse when one considers that private religious expression receives preferential treatment under the Free Exercise Clause.”
The concurring and dissenting justices not only failed to give religion the constitutional respect it deserves, but they would allow it to be suppressed because of sheer error. A municipality that permits a private menorah or cross to be erected in a public forum that adjoins its city hall is not actually endorsing the Jewish or Christian religions. Justices O’Connor and Souter acknowledged that the danger they see under the Establishment Clause is, in Souter’s words, that “an intelligent observer may mistake private unattended religious displays in a public forum for government speech endorsing religion.” Since when does a private person’s error regarding otherwise constitutionally protected conduct warrant suppression of what is constitutionally protected? May political speech be stifled because a “reasonable observer” could mistakenly think that it creates a clear and present danger of violence? Only religious speech is singled out to be silenced by popular error.
The victories of June 29, 1995 were welcome as first steps in dignifying, rather than debasing, religion. Religious speech, one now supposes, is no longer a First Amendment stepchild. A majority of the Supreme Court has decided that the nation need not fear private religious expression in the public square. It is ironic, however, that while Chabad refused to secularize its menorah and describe its display as merely secular speech in order to secure a litigation advantage, its recent courtroom triumphs have depended on religion’s constitutional equivalence to secular speech. A Supreme Court that says that the voice of Jacob may be heard but only because it cannot be distinguished from the voice of Esau has far to go before it achieves the respect for religion that the First Amendment commands.
Nathan Lewin is a member of the Washington, D.C. law firm of Miller, Cassidy, Larroca & Lewin.
William Bentley Ball
I had been pleased when I heard last November that the Supreme Court had granted review in the Rosenberger case. I thought that the Fourth Circuit had committed a baffling but ominous error in deciding that denial of aid to the students was at once unconstitutional (denying freedom of speech) and constitutionally required (by the Establishment Clause). The Establishment Clause ruling of the Fourth Circuit was, I believed, such a contrivance as to call for its dismissal by the High Court without laboring the point.
The Circuit’s free speech conclusion struck me as almost self-evident. After all, the University had found the sponsoring group for the evangelical journal Wide Awake to be eligible to participate in its program equally with all other eligible student groups publishing journals of opinion. Only when it turned out that Wide Awake’s opinions expressed religious advocacy did the University deny it funding. So now before the Supreme Court should have been an utterly unexceptional free speech case-a simple reaffirmation of the requirement that states avoid “viewpoint discrimination.” Inevitably then, Justices Stevens, Souter, Ginsburg, and Breyer (all of whom have often professed their unswerving loyalty to freedom of expression) would join in a unanimous ruling upholding the students’ rights.
While their surprising refusal to do so was based on their view of the Establishment Clause, their labyrinthine dissenting opinion (written by Justice Souter) surprisingly lurched into settled principles protecting free speech. Perhaps this was due to a desire to avoid the absurdity of the Fourth Circuit’s notion that the Establishment Clause can trump the Freedom of Speech Clause. In their Rosenberger opinion, however, the dissenters went some distance in trumping it themselves.
It is remarkable that, in the course of seeking to dismiss the student sponsors’ free speech claim, the Souter dissent omitted all reference to the University’s finding of their eligibility. The Court’s majority, by contrast, rightly considered it highly relevant that the sponsors had the proper status and that at no stage in the controversy had the University contended to the contrary. The finding put in sharp focus the critical point of the case-that it was solely the viewpoint of Wide Awake that moved the University to deny it the aid it extended to all other opinion journals. But more serious than the dissent’s departure from the facts of the case was its departure from known and reasonable principles governing freedom of speech.
The dissenters’ opinion centered on the fact that Wide Awake’s advocacy of Christian religious views was a religious activity and that the University’s refusal to fund religious activities applied across the board to Jewish, Muslim, and all other publications advocating religious views. That being so, no viewpoint discrimination was involved in denying funding to Wide Awake . Agreeing that denial of funding to an organ of opinion was a burden upon its freedom of expression, the dissenters’ hair-raising thesis seemed to be: everybody’s freedom of speech may be burdened or suppressed so long as that is accomplished evenhandedly.
A second aspect of the dissenters’ opinion-its radical view of what government may allow in the field of opinion-is also disturbing. The dissenters appear to say that funding would be permissible for a publication that would “discuss issues in general from a religious viewpoint” but not for a publication “engaged in promoting or opposing religious conversion and religious observance as such.” It was thus religious advocacy that was the dissenters’ problem.
But separating opinion into compartments of “general” opinion and “advocacy” opinion is not always easy; doing so when the result will be to permit or deny speech is dangerous. And if religious advocacy is a bar to funding, why should not advocacy in the field of race or sex be? Note that the dissenters here were opining, not on Establishment Clause principles, but solely on free speech principles. We reluctantly face the disconcerting conclusion that only bias on their part could have compelled their novel proscription of religious “advocacy.”
A third free speech problem posed by the dissent concerns what justifications government may have in burdening or limiting expression. While the main contention of the dissenters in this case was that the funding of Wide Awake would violate the Establishment Clause, their zeal to press that point caused their opinion to weigh free speech principles somewhat lightly in the balance. Seemingly far from their minds were old liberal watchwords about “freedom for the thought we hate” or Voltaire’s grandiose offer to lay down his life for someone’s right to express such thoughts. They did not even pause to say how the students’ case might be distinguishable from cases in the long line of Court decisions that had held “the unfettered exchange of ideas” to be the essence of First Amendment concerns. In the dissenters’ minds, allowing funding for that exchange would be destructive of a supreme societal interest in maintaining religion-state separation.
If now we are grateful that the dissenters mustered only four votes on the freedom of speech issue, we can be doubly grateful that the count was the same on the Establishment Clause issue-for on the latter issue we see at once the weakness of the dissenters’ position and its strength. Its weakness is legal, in its failure to acknowledge the line of precedents-from the Everson case in 1947 to the Zobrest case in 1993-which asserts that the Establishment Clause is not violated by religiously neutral governmental programs aiding a broad class of citizens, among whom may be religious groups or individuals. This fortunately still appears to be the view of at least five members of the Court, for it is immensely beneficial to the common good, sustaining freedom and militating against a harsh and arid official regime of secularism. The dissenters’ insistent emphasis on Court decisions emanating from Lemon v. Kurtzman (1971), with its secularist thrust, is a patent weakness in their Establishment Clause position.
But there is an ominous strength in the dissenters’ position. Four members of the Court, including three recent appointees, sedulously pursue the secularist approach and find their defense of it acclaimed by powerful media. The New York Times’ attack on the majority’s decision is all of a piece with its wide attack on what it called “A Court Running In the Wrong Direction” by a “lurch to the right” (in its recent voting rights and gun-free school zones decisions). Here, as with the dissenters in Rosenberger , the claim is made that five “conservative” members of the Court are outrageously disregarding precedent. What the Times failed to notice is that “precedents” (such as Lemon ) were decisions based on the trashing of precedents.
The Pinette decision bears close parallels to Rosenberger . In each, government had opened up a forum for a broad spectrum of expression. Each involved religious expression, and in each, material governmental assistance would have supported that expression. In neither did government single out that expression for favorable treatment or endorsement. In each, government claimed that such support would violate the Establishment Clause and not violate freedom of speech.
Justice Scalia’s opinion rejecting those claims casts a revealing light on the muddled Establishment Clause thinking that, until recently, has dominated the Court. Joining in the opinion were the Chief Justice and Justices Thomas and Kennedy. It was not the opinion of five justices-which is unfortunate since the opinion, if adopted by the Court, would have marked a significant advance for religious liberty. Scalia takes apart the notion that religious speech is a suspect category of expression. The position of the dissenters in Rosenberger , Scalia finds, “exiles private religious speech to a realm of less-protected expression heretofore inhabited only by sexually explicit displays and commercial speech.”
Justice O’Connor voted that the cross display did not violate the Establishment Clause. But in her view, whether that clause is violated in a particular case depends on whether a “reasonable observer” will fairly interpret particular governmental activity as an endorsement of religion. A welcome part of the Scalia opinion takes this view to task as both dangerous and unworkable. When the recorded facts are, as in Pinette, that the challenged governmental activity is religously neutral, how can the guessed-at views of the mythical “reasonable observer” possibly be relevant?
In neither Rosenberger nor Pinette did the religious parties argue that the governmental position violated their rights under the Constitution’s Free Exercise Clause. Scalia’s opinion shows the intimate alignment between free speech and free exercise rights, warning that “a free speech clause without religion would be Hamlet without the prince.” Rosenberger and Pinette are milestone decisions on religious free speech.
William Bentley Ball of the Harrisburg, Pa. law firm of Ball, Skelly, Murren & Connell has argued numerous religious freedom cases before the U.S. Supreme Court.
Dean M. Kelley
Both of the recent Supreme Court decisions were built upon the principal of equal access for religion to a public forum. The equal access principle is a long-settled feature of free speech law but of more recent application to the religious wars. The Supreme Court in Widmar v. Vincent (1981) held that a state university that had created an open forum for student clubs could not bar a religious club from that forum. Congress extended that principle to public high schools in the Equal Access Act of 1984, and the Supreme Court accepted that Act and its application in Westside Board of Education v. Mergens (1990).
Now the court has announced in Rosenberger that a student periodical devoted to religion cannot be denied a share of a fund collected from all students and used to pay for the printing of other student publications. And in Pinette it said that a cross cannot be barred from the lawn in front of a state capitol where other symbols sponsored by private parties have been allowed. As a staunch supporter of the equal access principle, I am a bit surprised to find myself in disagreement with both of these decisions.
The plaint of the student publishers of Wide Awake at the University of Virginia was that, in a day when government subsidizes everything, to fail to be subsidized by government merely because one is religious is to be discouraged in the pursuit of one’s religious interests. In effect, to fail to be subsidized is to be persecuted! That contention has been rejected by the Court in other contexts, where it has distinguished between a freedom and a right. The government must get out of the way of those who seek to exercise their freedoms, but that does not confer upon the exerciser the right to have government finance the exercise.
As Justice Souter pointed out in dissent, “The Court today, for the first time, approves direct funding of core religious activities by an arm of the State.” That is not just equal access but equal advancement . In Corporation of the Presiding Bishop v. Amos (1987), the Court explained that Congress could allow churches to hire their own members in preference to others because “a law is not unconstitutional simply because it allows churches to advance religion, which is their very purpose. For a law to have forbidden ‘effects,’ . . . it must be fair to say that the government itself has advanced religion through its own activities and influence.” But advancement seems to be what the University of Virginia is now required to do for the evangelistic student magazine Wide Awake . Justice O’Connor cautioned in Amos that “almost any government benefit to religion could be recharacterized as simply ‘allowing’ a religion to better advance itself.”
Justice O’Connor wrote a concurring opinion in Rosenberger designed to limit its usefulness as a precedent for other forms of direct financial aid to religion, pointing out that the student publications are independent of the University and must include a disclaimer in every issue to that effect, that money from the Student Activity Fund goes not to the student publishers but directly to the printer, that Wide Awake is only one of a number of competing student publications, and that the Fund is not revenue of the government but payments made by students, administered by students, and available only to students who have paid the fee.
The dissent rejected the majority’s reasoning from the free speech analogy of speakers at a public park or street corner, pointing out that there are no public parks or street corners furnished with a printing press. The dissent quoted extensively from Wide Awake to show that it was not just a journal about religion or with a religious viewpoint -as the majority implied-but an actively proselytizing and homiletic journal, complete with prayers. Justice Souter ended his dissent by quoting Chief Justice Burger: “In constitutional adjudication some steps, which when taken were thought to approach ‘the verge,’ have become the platform for yet further steps. A certain momentum develops in constitutional theory and it can be a ‘downhill thrust’ easily set in motion but difficult to retard or stop.”
This is the “slippery slope” warning often uttered by dissenters when viewing with alarm the ominous prospects opened by a decision. Nevertheless, it does describe an all-too-common dynamic in the deliberations of the nation’s highest court: the gradual shift of fashion and favor to what was once unthinkable. Some welcome such shifts by the Court, and some condemn them, but they happen, usually moving from firm but abstract “principles” toward messy but exigent applications. But they are not necessarily progress, and they do not provide much guidance to the lower courts.
The Pinette case evoked six separate opinions, showing a splintering among the justices over the equal access principle as applied to religious symbols in proximity to the seat of government. Seven justices agreed (in an opinion by Justice Scalia) that the state had not justified its refusal to permit the erection by the Ku Klux Klan of a cross in front of the statehouse, but a plurality of four would have gone further and announced that the Establishment Clause is never violated by religious expression that is (1) private and (2) occurs in a public forum, even if a reasonable observer might attribute state endorsement to such a display. Three justices bailed out of Justice Scalia’s opinion at this point, and insisted that there were steps the state could and should have taken to avoid the appearance of endorsement, such as (1) banning all unattended symbolic displays, or (2) requiring them to bear a large disclaimer of state endorsement, or (3) confining them to a particular area under a permanent disclaimer of such endorsement.
Justice Stevens, in a lone dissent, expressed what I (who am not one of his fans) thought the most cogent opinion of the lot. He noted that the Klan wanted to put its cross on the statehouse lawn to counter a menorah placed there by a Jewish group, and that these private sponsors wanted to get their symbols up there in front of the capitol building to attain some kind of cachet that would not be conferred by placement on private premises. He therefore would ban all displays of unattended religious symbols on government property in proximity to the seat of government.
All of the judges (except Justice Thomas) wrestled with the significance of a symbol’s being “unattended” (a word used forty times in five opinions), and the majority observed that the state could ban all unattended symbols without violating the Free Speech Clause. Justice Stevens insisted that any unattended symbol standing on the statehouse lawn would naturally be assumed to represent the owner of the land on which it stood, an assumption not readily neutralized by any disclaimer less prominent than the symbol itself.
If one may be so bold as to critique the “publicsquare” model in the pages of First Things , it seems curious that the “public square” seems so often to be equated with the “government square.” In most communities, there are more than governmental premises around the square, all equally “public” in the sense of offering sites for symbolic expression. Why must contestants for the awareness of the community cluster so competitively around the governmental site unless they mistrust their ability to commend themselves to the attention of the public on their own merits? It is certainly an impoverished view of the pluralistic community to suppose that religion-one of the most powerful factors in human experience-is so feeble or resourceless that it must rely on governmental favor and fostering to survive or progagate itself.
Of course, this may be true only of the attenuated, acculturated strains of religion that most insistently press for leave to be seen more prominently in “public,” and if their wish be granted, it will not only increase their acculturation and thus dilute their possible effect, but subject them to the greater governmental surveillance, monitoring, direction, and control against which the Establishment Clause was meant in part to guard. However benignly government may stay its hand under a current regime, such restraint may well not be forever, and when a new Pharaoh succeeds who “knew not Joseph,” then government’s expectations of its clients may become more importunate, not only having the force of law, but bearing the ultimate sanction of being able to cut their water off (after the beneficiaries have become dependent on it).
If you think that is no serious threat, give ear to the howls of outrage around the country at the prospect that the base-closing commission will cut the welfare flow of defense dollars to previously favored communities. Then imagine similar protests arising from religious clients who fear the loss of benefits to which they have become accustomed, and the strictures of the Establishment Clause may seem more sagacious. Of course, this wisdom may not prevail, and we may have to learn again by sad experience that religion does not really benefit by government assistance, however well intended. It may be, however, an “experiment upon our liberties” not easily reversed.
Dean M. Kelley , who wrote ”Waco: A Massacre and Its Aftermath” for the May issue of First Things , is Counselor on Religious Liberty for the National Council of Churches.
Michael W. McConnell
As the lawyer for the winning side in the Rosenberger case, it would be churlish of me to criticize the Supreme Court for its decision. But the case should not have been so hard. That it produced a 5-4 split, with signs of weakness and uncertainty among the five justices in the majority, indicates that the long-festering confusion over religious liberty continues. The victory was important, but the timid and uncertain opinion for the Court-and even more timid and uncertain concurrence by Justice O’Connor-leaves us not much better off than we were before.
To see why the case should not have been perceived as so controversial or difficult, let me summarize a few principles of First Amendment law that were firmly established before this case. First, public universities may not refuse to fund otherwise eligible student activities because of their viewpoint or message, however controversial. This principle was established in cases involving campus gay rights groups, a black separationist newspaper, and antiwar protests urging violations of law.
Second, public universities must accord religious student groups equal access to university facilities. Even though free use of facilities is a valuable benefit, which advances the students’ ability to convey their religious message, this does not violate the Establishment Clause, because it is simply neutral treatment.
Third, government subsidies, including such things as tax benefits, tuition payments, and in-kind benefits, may be used for religious activities whenever the “subsidy is conferred upon a wide array of nonsectarian groups as well as religious organizations in pursuit of some legitimate secular end.” The author of these provisions was not conservatives Antonin Scalia or William Rehnquist. It was William J. Brennan, probably the most revered liberal on the modern Court. This means that subsidies may not be given to a group because of its religious message , but if the group qualifies for eligibility under the government’s objective criteria, it need not be excluded because of its religious message.
With these principles firmly in place, there should have been little doubt that the University committed clear constitutional error when it denied Wide Awake equal access to printing subsidies it gave to other student publications. Religious speakers and religious viewpoints are entitled to the same free speech rights as other speakers.
This does not mean that religion should be subsidized by the state. It means only that all speakers should be treated neutrally, without regard to the religious or nonreligious orientation of their message. If it is wrong to tax non-Christian students for the support of a Christian-oriented magazine, then it is wrong to tax Christian students for support of a gay rights group. If it serves legitimate governmental interests to tax everyone to support a diversity of student groups, then let it be a full diversity, not a diversity confined to secular philosophies and ideologies.
Justice Kennedy’s majority opinion made two important points. The first is his recognition that neutrality toward religion-not separation-is the central principle under the Establishment Clause. “The guarantee of neutrality,” he wrote, “is respected, not offended, when the government, following neutral criteria and evenhanded policies, extends benefits to recipients whose ideologies and viewpoints, including religious ones, are broad and diverse.”
Second was his recognition that religion constitutes a “viewpoint” for purposes of the free speech clause. To the dissenters, religion is apparently a separate category of speech, essentially unconnected to the affairs of the world. So long as the government treats the various religious groups (including atheists) equally, it can (must) exclude them all from the regular world of student journalism. To the majority, however, religion is not just a separate subject, but “a perspective, a standpoint from which a variety of subjects may be discussed and considered.” In other words, religion is involved with the world. Christianity competes in the marketplace of ideas with secular ideologies just as it does with other faiths.
The majority opinion is nonetheless disappointing. It disregards old separationist precedents, but it does not overrule them. It does not explain why the precedents on which the dissent relies are hostile to religion and antithetical to the liberal purposes of the First Amendment, and it neither acknowledges the conflicts in past cases nor cuts through the underbrush of past errors. It provides no affirmative vision of the place of religious speech under the First Amendment, and it is written with little conviction.
Worse yet, the majority focuses on factual details that ought to be irrelevant to constitutional analysis. The Court stresses that the money is paid directly to the printer-but how does that have any bearing on the constitutional question? The Court notes that the University did not claim that Wide Awake was a “religious organization”-but if it had, would the case have come out differently? The Court emphasizes that the money came out of the Student Activity Fund and not general tax revenues-but why are the principles of neutrality any different for taxes than for mandatory fees?
The function of these details is to create room for the justices to maneuver in future cases, and it shows a lack of confidence in the principle. More ominously, these points of detail can be used by recalcitrant administrators and lower courts to frustrate the important principles of constitutional right recognized in the case. If a public university doesn’t wish to comply with Rosenberger , can it make the (utterly meaningless and formalistic) change from cutting the check to the printer to cutting the check to the group? If a lower court disapproves of the principle of neutrality in a case involving a more typical government program, can it reach the opposite result because the case involves tax money rather than student activity fees? The only consequence of these unprincipled limitations is to breed uncertainty and litigation.
Worse yet is Justice O’Connor’s concurring opinion. Under her analysis, this case involved “two bedrock principles in conflict.” Rather than seeing this ostensible conflict as an indication that the Court needs to reexamine its contradictory jurisprudence, O’Connor announced that resolving it requires “the hard task of judging-sifting through the details and determining whether the challenged program offends the Establishment Clause.” The problem with this case-by-case approach, however, is that it leaves universities, legislators, and lower courts guessing about what the rules are. Under Justice O’Connor’s approach, we cannot tell whether a particular program is constitutional without litigating it all the way to the Supreme Court.
Then there are the dissenters, with four votes for a vision of the Establishment Clause more extreme than anything espoused by Brennan and Marshall in their last decade on the Court. The dissenters do not bob and weave; they do not offer caveats and preseve room to maneuver; they are not concerned with sifting the details. To them, the Establishment Clause is a plain command that the state must exclude religious speakers, groups, and messages from public funding-no matter how neutral or broad-based the program may be. This is a chilling prospect. As government pervades more and more of our (formerly private) lives and activities-education, health, day care, student journalism-religious groups either must be excluded or must shed their distinctive religious character as the price of inclusion. Government thus becomes a relentless engine of secularization.
The dissenters’ interpretation of the First Amendment is stark, confident, and uncompromising. The majority is weak and vacillating. The case is won. But it does not inspire confidence for the future.
Michael W. McConnell is the William B. Graham Professor of Law at the University of Chicago.
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