Rosenberger v. Rector and Visitors of the University of Virginia, 515 U.S. 819 (1995)

The Student Activities Fund (SAF) of the University of Virginia (UVA) subsidizes student publications by paying outside contractors for printing costs; SAF funds come from mandatory student fees. Wide Awake Productions (WAP), a Christian student organization that publishes a newspaper, Wide Awake: A Christian Perspective at the University of Virginia, was denied SAF funding because the newspaper ‘‘primarily promotes or manifests a particular belie[f] in or about a deity or ultimate reality.’’ UVA contended that subsidizing ‘‘Wide Awake’’ would violate the Establishment Clause of the Constitution. A five-tofour majority of the Supreme Court disagreed, ruling that UVA’s denial constituted impermissible viewpoint discrimination prohibited by the free speech clause of the First Amendment, and was not required by the Establishment Clause.

Conflict over state financial and other aid to religious institutions has been a continuing strain in American life and law. Even prior to adoption of the Constitution, Americans struggled to reconcile the deep religiousness of the American people with an equally profound awareness of the need for church– state separation in a nation with widely varying faiths.

Education at all levels has been perhaps the most frequent battleground, and the many Supreme Court decisions on state aid to religion have traced an inconsistent and often baffling line. The difficulties and resulting inconsistencies appeared in the Supreme Court’s first decision for state aid to religious schools. In Everson v. Board of Education (1947), the Court seemed to espouse a ‘‘no aid’’ principle as a result of which, neither a state nor the federal government ‘‘can pass laws which aid one religion, aid all religions, or prefer one religion over another.’’ Despite the apparent comprehensiveness of that statement, however, a five-to-four majority of the Court in Everson allowed public funding for bus transportation to religious schools.

In 1971, the Court developed what became known as the ‘‘Lemon test’’ for state aid to religious entities. The test focused on the purpose and effect of the state support, and whether monitoring the aid would excessively ‘‘entangle’’ the government in religious matters (Lemon v. Kurtzman [1971]).

Ten years later, an eight-to-one majority ruled that religious worship and instruction were entitled to full constitutional protection under the free speech clause. If a university allowed student groups generally to meet in university classrooms, it created a limited public forum. If it then denied religious groups use of the classrooms, even if for specifically religious prayer, this was deemed to be unconstitutional viewpoint discrimination (Widmar v. Vincent [1981]). Justice Byron White protested against allowing prayer and religious instruction full First Amendment protection, but he was alone. The Court subsequently extended the ‘‘public forum’’ logic of Widmar to require a public school district to provide a religious group with the same facilities for showing films on family values from a religious perspective, as it offered to groups that discussed these issues from a nonreligious point of view (Lambs Chapel v. Central Moriches Union Free School District [1993]).

Rosenberger extended these principles into the financial subsidization context. Writing for a majority of five, Justice Anthony Kennedy first stressed that WAP was not classified by UVA as a ‘‘religious organization,’’ but had qualified as an independent student group normally entitled to SAF funds just like other groups. He likened the SAF funding to ‘‘a metaphysical’’ forum in which all viewpoints were entitled to be represented. The university’s refusal to fund WAP because of ‘‘Wide Awake’s’’ religious perspective was thus unconstitutional viewpoint discrimination. He rejected the four dissenters’ view that since the university barred all publications that took a position on a ‘‘deity or ultimate reality,’’ there was no viewpoint discrimination.

The Court of Appeals had also found viewpoint discrimination, but upheld UVA’s contention that the Establishment Clause prohibited it from paying ‘‘Wide Awake’s’’ printing expenses because that amounted to direct monetary subsidization of religious activities. Justice Kennedy dismissed this claim, without even mentioning the Lemon test. While recognizing ‘‘dangers where the government makes direct money payments to sectarian institutions,’’ he emphasized that the benefit received by the religious group was a service and not cash; the subsidization was thus indirect. Moreover and apparently of central importance to the majority, the service was provided on a neutral basis, which distinguished it from a general tax levied for the support of a church or churches, or a cash payment directly to a church. It thus entailed no endorsement of religion by the university, a position stressed by Justice Sandra Day O’Connor in a concurring opinion.

In a lengthy opinion by Justice David Souter, four justices sharply disagreed. Citing numerous examples from Wide Awake, Justice Souter concluded that the publication openly proselytized for evangelical Christianity and ‘‘preached the word’’; SAF payment for the printing costs thus provided direct monetary support for a religious activity. This, he asserted, was ‘‘categorically forbidden’’ by a long line of cases and history. The fact that the subsidization was available on a neutral basis to sixteen diverse publications was considered by the dissenters to be irrelevant to the constitutionality of the payment; they also saw no merit to the distinction between direct and indirect monetary support, or between a general tax and a mandatory student payment to the SAF.

Rosenberger left many questions open, particularly the significance of neutral distribution of governmental benefits, the scope of the ‘‘metaphysical’’ open forum, and the continued viability of the Lemon test. These uncertainties have been compounded by the Court’s 2004 decision in Locke v. Davey (2004). There, the Court refused to require Washington State to extend a scholarship program to a student majoring in theology that was taught from a perspective that was ‘‘devotional in nature or designed to induce religious faith,’’ while allowing other scholarship recipients to use the scholarship for all other purposes. Some have contended that the decision is inconsistent with Rosenberger’s stress on neutrality.

HERMAN SCHWARTZ

References and Further Reading

• Layock, Douglas, Comment: Theology Scholarship, The Pledge of Allegiance and Religious Liberty: Avoiding the Extremes but Missing the Liberty, Harvard Law Review 118 (2004): 155.
• Redlich, Norman. ‘‘The Religion Clauses: A Study in Confusion.’’ In Herman Schwartz, ed. The Rehnquist Court. New York: Farrar Strauss and Giroux, 2002.
• The Supreme Court, 1994 Term, Harvard Law Review 109 (1995): 111:210.

Cases and Statutes Cited

• Everson v. Board of Education, 330 U.S. 1 (1947)
• Lambs Chapel v. Central Moriches Union Free School District, 508 U.S. 384 (1993)
• Lemon v. Kurtzman, 403 U.S. 602 (1971)
• Locke v. Davey 540 U.S. 712 (2004)
• Widmar v. Vincent, 454 U.S. 263 (1981)

See also Establishment Clause Doctrine: Supreme Court Jurisprudence; Establishment of Religion and Free Exercise Clauses; Government Funding of Speech; Lemon Test; Religion in Public Universities; Viewpoint Discrimination in Free Speech Cases