First Amendment, Case by Case

Article excerpt

An evangelical Christian group has won the right to use mandatory student-activity fees at the University of Virginia to help finance the group's religious magazine.

In its 5-4 decision June 29, the U.S. Supreme Court said that if a public university is going to require mandatory fees for student activities it "may not silence the expression of selected viewpoints" just because those viewpoints are religious in nature.

Silence?

The university wasn't telling the student group that it couldn't hand out its magazine on campus, only that mandatory fees could not be used to subsidize a religious publication.

The court's decision is being hailed by religious conservatives as the beginning of the end to more than 20 years of court rulings that, in their view, have served to punish religious speech.

It seems to me, though, that the court has created more problems than existed before this ruling.

Indeed, Justice Anthony M. Kennedy, who wrote the majority opinion, and Justice Sandra Day O'Connor, who wrote a separate concurring opinion, carefully tried to couch this ruling as the exception to the rule - not a new rule.

They stressed that the case was unique in several respects: one, that the money being sought by the religious student group was not the government's (taxpayers') money - it came from student activity fees. Moreover, the university's own rules required that payment for publishing any and all student publications be made directly to the printers of those publications and not to the groups seeking the money.

"This is a far cry from a general public assessment designed and effected to provide financial support for a church," Kennedy wrote. O'Connor stated that the Virginia case is "at the intersection of the principle of government neutrality and the prohibition on state funding of religious-activities" and that the court's ruling "neither trumpets the supremacy of the neutrality principle nor signals the demise of the funding prohibition in Establishment Clause jurisprudence. …