In Two Cases, Justices Broaden Protection of Religious Speech

By William H. Freivogel Of the Post-Dispatch | St Louis Post-Dispatch (MO), June 3, 1995 | Go to article overview
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In Two Cases, Justices Broaden Protection of Religious Speech


William H. Freivogel Of the Post-Dispatch, St Louis Post-Dispatch (MO)


The U.S. Supreme Court broadened the protection of religious speech on Thursday, for the first time permitting public funds to go directly to a private religious activity.

The court ruled 5-4 that the University of Virginia violated the free speech rights of students running a religious publication by denying them the benefit of the student activity fees provided other student groups.

In a second case, the court ruled 7-2 that authorities in Columbus, Ohio, violated the free speech rights of the Ku Klux Klan by refusing permission to plant a cross in the public square across from the statehouse.

In one other victory for religious speech on the last day of the term, the court handed a legal win to a religious group in Ladue seeking access to the junior high school after school hours. The court turned down an appeal from the Ladue School District, which wanted to deny the facilities to the Good News/Good Sports group.

The court did not issue an opinion in the Ladue case, but the result is in line with the decision in the University of Virginia case: Government may not discriminate against religious speech.

The court's action left the Ladue School Board with the decision of whether to keep its facilities closed to all student groups after school hours or to open them to all the groups, including the 15 students in Good News.

Taken together, the religion decisions elevated the constitutional protection of private religious speech, while giving less attention to the First Amendment's Establishment Clause, which requires a separation of church and state.

"The court is wanting to put religious speech on the same pedestal or high ground as political speech," said Roger Goldman, a professor at St. Louis University Law School. "In the process they are downgrading the Establishment Clause." Court Deeply Divided

But the court was deeply divided, as it has been for decades in religion cases. For that reason, legal experts said it was uncertain whether the court's decision in the Virginia case was the first in a series of instances in which it will approve public funds for religious activities.

Justice Sandra Day O'Connor, the decisive fifth vote in the Virginia case, emphasized in a separate opinion that she still recognized the importance of the constitutional principle of not providing government aid to religion. But in this case, the principle collided with the requirement that the government not discriminate against religious speech.

In the end, O'Connor resolved this conflict by focusing on the details of the Virginia program, refusing to set out a broad principle to govern future cases.

Supporters of the separation between church and state thought the decisions could have far-reaching effects. Barry Lynn of Americans United for the Separation of Church and State said, "Everyone agrees that religious groups have free speech, but today the high court made the government award them space and buy them a bullhorn."

The University of Virginia case arose from the university's decision to deny student activity fees to "Wide Awake," a Christian religious publication which acknowledged its proselytizing. Other student publications, including an Islamic one, got the fees.

Justice Anthony M. Kennedy wrote that the university's decision amounted to unconstitutional "viewpoint discrimination."

"For the university, by regulation, to cast disapproval on particular viewpoints of its students risks the suppression of free speech and creative inquiry in one of the vital centers for the nation's intellectual life, its college and university campuses," Kennedy wrote.

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