Mr. Lanting, a member of South Holland Protestant Reformed Church, is a practicing attorney.

“To obey the Establishment Claus, it was not necessary for the University to deny eligibility to student publications because of their religious viewpoint. The viewpoint discrimination inherent in the University’s regulation required public officials to discern the student newspaper’s underlying philosophic assumptions respecting religious theory and belief. That course of action was a denial of the right of free speech and… undermines the very governmental neutrality the Establishment Clause requires.”

Rosenberger v. University of Virginia,

U.S. Supreme Court (1995) (majority opinion)

“[The student newspaper in question contains] not the discourse of the scholar’s study or the seminar room, but of the evangelist’s mission station and the pulpit. It is nothing other than the preaching of the word, which (along with the sacraments) is what most branches of Christianity offer those called to the religious life. Using public funds for the direct subsidization of preaching the word is categorically forbidden under the Establishment Clause…”

Rosenberger v. University of Virginia

U.S. Supreme Court (1995) (minority opinion)

In the past few decades, the First Amendment Establishment Clause (“…. Congress shall make no law respecting an establishment of religion”) has been often interpreted by the Supreme Court to erect a rigid wall of separation between church and state. Very recently, however, the more conservative justices (Kennedy, Rehnquist, Scalia, Thomas, and O’Conner) are suggesting that the Establishment Clause has been too broadly construed, resulting in a milieu of government hostility- rather than neutrality toward religious expression. In the context of this area of constitutional law, the Court released this summer a controversial 54 decision that arguably expands the freedom of religious expression.

Ron Rosenberger, an evangelical Christian student at the University of Virginia, formed a student organization called Wide Awake Publications to publish a campus newspaper called Wide Awake: A Christian Perspective at the University of Virginia. The editors committed the publication to a twofold mission: “… to challenge Christians to live, in word and deed, according to the faith they proclaim and to encourage students to consider what a personal relationship with Jesus Christ means.”

Soon after its formation, Wide Awake Publications was certified as a qualified student organization. Some 118 such student groups existed on campus receiving partial funding from the University’s Student Activity Fund, which had been established for extracurricular activities. The University paid for the printing costs of some student publications from this fund. But when Rosenberger applied for funding to pay a printer for the printing costs of Wide Awake, the University refused, stating that Wide Awake“primarily promotes or manifests a particular belief in or about a deity or an ultimate reality,” which was prohibited by the Student Activity Fund guidelines.

Rosenberger and his fellow student newspaper editors then filed suit in federal court alleging the University’s denial of funding for their printing costs violated their First Amendment right to freedom of speech. The lower court held that although the University’s “viewpoint discrimination” violated the Speech Clause, this discrimination was justified by the necessity of complying with the Establishment Clause.

On appeal, the U.S. Supreme Court agreed with the lower court that the University’s denial of Wide Awake’s printing costs (while funding printing costs for other student publications) was indeed a denial of free speech, but also ruled that the funding of the Christian newspaper’s printing was not forbidden by the Establishment Clause.

First, the majority held that the Student Activity Fund program was neutral toward religion since there was no evidence that the Fund was created to advance or aid religion. Secondly, the court found it significant that none of the money went directly to Wide Awakeproductions; the funds in question went to a third party off-campus printer. And since the University funded printing services to a broad spectrum of student newspapers, the University could not single out Wide Awake because of its unique religious “viewpoint” or “content.” Printing, said the majority, is a “routine, secular and recurring attribute of student life.”

The minority of the Court bitterly disagreed. Dissenting Justice Souter found the newspaper to be a “straightforward exhortation to enter into a relationship with God as revealed in Jesus Christ” which is nothing more than “preaching the Word.” Thus, preaching, not printing is at issue, Justice Souter declared (see dissent quote above). He lamented that the Court “for the first time approves direct funding of core religious activities by an arm of the state.”

Evangelical constitutional scholars, although lauding the Rosenberger decision as a qualified victory for religious expression, were somewhat disappointed that the Court again did not set any firm guidelines for future disputes in related areas. Accordingly, although public universities are now prohibited from “content” or “viewpoint” discrimination among student publications on a public university campus, the lack of articulate Supreme Court guidelines makes theRosenberger decision arguably of little help in deciding future Establishment Clause cases.

In a recent Christianity Today guest editorial reviewing the Rosenberger decision, Steve McFarland, the director of the Christian Legal Society’s Center for Law and Religious Freedom, declared the Rosenberger decision a “tenuous” victory:

But this major victory for free religious expression came from a Court that promises no bright lines, only “quite fine” ones in this area of public aid for religious expression. Four dissenting justices categorically concluded that the university must disqualify from equal funding any religious voice. And the critical swing vote (Justice Sandra Day O’Connor) announced that she could not extrapolate the ruling into a compass usable for navigation in future cases. So the federal judiciary will leave us’ to grope our way forward, one case at a time. This is hardly good news for Americans who cannot afford the time and dollars to get direction from the Supreme Court.

McFarland and other evangelical constitutional scholars accordingly suggest that since the Supreme Court will not clarify the current “legal muddle” surrounding the First Amendment’s freedoms regarding religious expression, perhaps the only guarantee for the equality of religious expression in our increasingly secular society is a constitutional amendment. But because of the national consensus required for passage, such an amendment is indeed unlikely. Therefore Christian organizations and individuals will continue to be compelled to litigate whenever the government asserts hostility toward religious expression in the public sector, where all viewpoints are seemingly tolerated (even subsidized) except those of conservative evangelical Christians.

The Chicago Tribune’s (6/30/95) report on theRosenberger decision included the statement that “legal experts said the Court’s reasoning suggests it now may be willing to allow public funding of other religious activities, such as the use of government-issued vouchers to pay for education in a church-run school.” What the legal experts are not saying is how such non-public schools will escape the governmental interference and control that historically and inevitably accompanies governmental funding. Indeed, perhaps then the only way to shield non-public schools honoring such proposed vouchers from governmental interference would be an appropriate constitutional amendment protecting such parental and parochial schools from state interference.