The Supreme Court heard arguments this week in a potentially explosive case that could have serious and far-reaching ramifications for the traditional separation of church and state.
The court must decide if the University of Virginia, a state school, can deny funds for a student-run Christian magazine.
The student editor, Ronald Rosenberger, sued, saying the school violated his right to free speech when it refused his $5,800 in funding.
The university argued that the magazine falls under the rubric of “religious activity,” and funding the publication would lead to an entanglement of church and state.
This is the court’s first church-state case this session, and it comes as some justices have indicated they are moving toward a view that would accommodate more religious practices in public venues, according to observers. Still, there was no clear sense of how the justices would rule. A decision is expected by the end of the court’s term in June.
Jewish activists have said the case, Ronald Rosenberger vs. Rector and Visitors of the University of Virginia, could profoundly affect issues like religious speech, religious freedom, equal access and government involvement in religious issues. The future of the Establishment Clause of the Constitution is at stake, they argue.
The court has the potential to make a revolutionary decision depending on what it decides and how broadly it writes its opinion, said Marc Stern, co-director of the Commission on Law and Social Action of the American Jewish Congress.
The case represents “a new horizon” on the church-state front — government funding of religion — added Michael Lieberman, Washington counsel for the Anti-Defamation League.
Stern, Lieberman and Samuel Rabinove, legal director for the American Jewish Committee, filed an amicus brief with the court supporting the university.
The magazine’s attorney, Michael McConnell of Chicago, argued in court Wednesday that the university suppressed the students’ free speech, and said the magazine was equal to other student publications.
“The First Amendment prohibits viewpoint discrimination,” McConnell told the packed courtroom. “The university cannot use its power to skew the market place of ideas.”
McConnell painted the magazine, Wide Awake, as an educational tool, and said it was a place where young journalists could learn the trade. That is reason enough to fund it, he said.
“Writing a student paper is an educational activity — not because of its content, but because the activity engaged in is student journalism, (which) is state supported,” he said.
Justice Antonin Scalia pointed out that University of Virginia guidelines exclude publications that profess a religious belief.
McConnell said those guidelines should not apply in this case because the magazine meets all the criteria of a news, information or opinion media outlet. Such outlets are funded by the university.
Justice Ruth Bader Ginsburg challenged McConnell to find any decision by the court authorizing direct cash contributions to support religious activities.
The university’s lawyer, John Jeffries Jr. of Virginia, did not explicitly focus on the Establishment Clause in his argument.
Instead, he tried to show that the university’s regulations excluded Wide Awake from funding because it constituted a religious activity. Public education cannot fund religious activities, he said.
“There is a long tradition of financially disengaging church and state, and it is reasonable for us to adhere to that,” Jeffries said.
The magazine is a religious activity because it manifests belief about a deity and spreads those beliefs through the magazine, Jeffries said.
The university funds two other religious affiliated groups, the Jewish Law Association and a Muslim magazine, Al-Salam, but says their activities are cultural.
Justice Anthony Kennedy, the most vocal in challenging Jeffries’ arguments, pointed out that the magazine constituted religious speech, and may be different from religious activity.
Jeffries countered by arguing that the magazine was a religious activity that promoted religious speech.
Kennedy said the idea of withholding funds from a discussion of abstract ideas “doesn’t follow.” He also badgered Jeffries into agreeing that a campus newspaper with a religious column would probably get funding.
Observers pointed out that Jeffries took pains to distinguish between access for religious groups, which was allowed, and funding for those groups, which he argued should not be allowed.
“We should be pleased because that was well presented,” the ADL’s Lieberman said.