Rosenberger v. University of Virginia,

515 U.S. 819 (1995), argued 1 Mar. 1995, decided 29 June 1995 by vote of 5 to 4; Kennedy for the Court, O’Connor and Thomas concurring, Souter, Stevens, Ginsburg, and Breyer in dissent. The bitter cultural wars of the 1980s and early 1990s produced a host of powerful conflicts over religion. Nowhere, however, were these tensions more evident than in Rosenberger, a case that pitted religious conservatives against civil libertarians. Ronald W. Rosenberger in 1990 was a student at the University of Virginia and editor of the short-lived Christian publication Wide Awake. The magazine included Christian symbols on each page and professed an editorial policy that “challenge[s] Christians to live, in word and deed, according to the faith they proclaim and to encourage students to consider what a personal relationship to Jesus Christ means” (p. 833). Rosenberger requested $6,000 from the Student Activity Fund, a request that first a student advisory group and then the administration of the university denied. They did so on the grounds that Wide Awake proselytized religion and violated existing guidelines prohibiting the funding of religious groups. Rosenberger claimed, however, that the university funded other religious groups, including the Jewish Law Students Association and the Muslim Student Association, and that its actions amounted to a violation of his right and that of other Christian students to express a point of view.

There was more than a little irony in the fact that the case arose at the University of Virginia, an institution founded by Thomas Jefferson, whose views on the need to separate church and state were well known, as were his convictions that the marketplace of ideas should be wide open. Behind the case, however, was an important issue: had the Supreme Court’s professed position of neutrality in matters involving church-state issues come to allow a pattern of religious discrimination? The issues posed by the case were especially difficult since they implicated not only the *Establishment Clause of the *First Amendment but the guarantee of freedom of speech in that same amendment.

(p. 869) The lower federal courts found in favor of the University of Virginia. The court of appeals for the Fourth Circuit affirmed a summary judgment ruling from a federal district court. The circuit court found that the university’s invocation of viewpoint discrimination in denying Rosenberger third-party funds had violated the *Speech Clause of the First Amendment. The circuit court held that in balancing the requirements of the Speech and Establishment Clauses, the university had to do so in favor of the latter. The Fourth Circuit concluded that the Establishment Clause prohibited the university, a state entity, from providing any direct assistance to religion.

The unique set of facts in the case stirred to action all of the major constituencies involved in the debate over church-state relations. Conservative groups, such as Pat Robertson’s American Center for Law and Justice, the Christian Legal Society, and the Family Research Council urged the Court to find in favor of Rosenberger and to scrap its “*Lemon test,” named after the high court’s ruling in *Lemon v. Kurtzman (1971). That test mandated that government actions touching on religion must have a secular purpose, must neither advance nor inhibit religion, and must not excessively entangle church and state. The state of Virginia took the unusual step of opposing the position of its own university and siding, instead, with the religious right.

On the other side, Americans United for Separation of Church and State, the *American Civil Liberties Union, the American Jewish Council, and the National Council of Churches urged the Court to maintain a bright line separating church and state and to uphold the Lemon test.

Justice Anthony M. Kennedy’s ruling for a sharply divided Court found in favor of Rosenberger. To obey the constitutional ban on the establishment of a state religion, Kennedy wrote, “it was not necessary for the university to deny eligibility to student publications because of their viewpoint” (p. 868). Indeed, unlike content discrimination (i.e., discrimination based on the subject matter of the speech), viewpoint discrimination (i.e., discrimination based on a speaker’s ideology, opinion, or perspective) was presumed to be unacceptable. By refusing to subsidize the printing of Wide Awake, Kennedy continued, the university had violated the free speech rights of the students because it was unconstitutional to silence their particular message about the value of Christian belief. When the Establishment and the Speech Clauses of the First Amendment came into conflict, Kennedy found, the balance had to be tipped in favor of speech, a position that the Fourth Circuit had specifically rejected. The majority, however, left the Lemon test in place.

Justice David Souter, whose dissent was joined by John Paul Stevens, Ruth Bader Ginsburg, and Stephen Breyer, accused the majority “for the first time” of approving “direct funding of core religious activities by an arm of the government” (p. 898). According to Souter, the ban on establishing a state religion had little meaning if public funds could be used to support activities like Wide Awake.

Rosenberger was an important but not a profound constitutional case. It did not establish a new set of principles; instead, it answered an important question: to what extent are public institutions obliged to provide support to religious organizations for the purposes of propagating their viewpoint? The Court answered that question by engaging in a subtle but important shift that weighed the balance between speech and religious freedom somewhat more toward the former.

Kermit L. Hall