By Gaffney, Edward, Jr.
Commonweal , Vol. 122, No. 8
One of the most important First Amendment cases on the docket of the Supreme Court this term is Rosenberger v. University of Virginia. It involves basic issues of fairness deriving from the Free Speech and Free Press provisions of that amendment, and the university's claim that the First Amendment's Religion Clause prohibits public funding of a student publication that is religious in character.
The University of Virginia operates a fund derived from compulsory student fees to support student activities such as public lectures and newspapers. Ronald Rosenberger and other Christian students at the university petitioned for a share of this student activity fund to support the cost of producing an alternative student publication called Wide A wake. The stated purposes of this group are "to publish a magazine of philosophical and religious expression, to facilitate discussion that fosters an atmosphere of sensitivity to and tolerance of Christian viewpoints, and to provide a unifying focus for Christians of multicultural backgrounds." The magazine offered Christian perspectives on issues of public concern such as racism, crisis pregnancy, homosexuality, and the relative morality of capitalism and socialism. Relying on the Establishment Clause, the university denied funding to Wide Awake because the magazine is designed to advocate a particular religious belief.
The Court might use this case to expand its teaching about the Establishment Clause. But it is more likely that the Court will simply reaffirm its free-speech and free-press precedents. These cases clearly teach that the government may not prefer secular speech over religious speech, at least when the speakers are private parties rather than government officials. To do so, the Court has explained, violates principles deeply embedded in the First Amendment, such as governmental neutrality and the equality of all speakers in public forums.
The Court has repeatedly held that the government may not engage in discrimination on the basis of the content of speech, and it has been even clearer in prohibiting discrimination by the government with respect to differing viewpoints on the same matter. This line of cases creates a serious difficulty for the university in the Rosenberger case. The university gave funding to 118 other groups, including the Muslim Students Association, which publishes a magazine that presents an Islamic viewpoint on issues of world affairs. The university also supported the Jewish Law Students Association, a group whose purpose is "to encourage Jewish law students to participate in Jewish activities." How can the university support some religious perspectives and not others? The university maintains that it does not draw an unfair line between various religious groups, but only supports groups engaged in cultural rather than religious activity.
There are several problems with this view of the case. First, the line between religion and culture is a difficult one to draw. Muslims promoting Islam are not religious? If one really thinks that is so in Charlottesville, Virginia, at least it should not be shouted by Americans from the rooftops of Baghdad or Teheran. Second, the distinction that the university draws is difficult for the government to enforce without becoming very intrusive in matters that are literally none of its business. …