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
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
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. …