Jewish activists are mobilizing for the next round in the church-state battle in the wake of the Supreme Court’s decision this week to determine whether a state university can fund student-run religion publications.
The Supreme Court said Monday it will decide if the University of Virginia, a state financed institution, was right in refusing to use money allocated for student activities to subsidize a student-run Christian magazine.
The magazine’s editor, Ronald Rosenberger, sued his university, saying UVA refusal to give $5,900 to publish a biblical Christianity magazine violated his constitutional right to free speech and freedom of religion.
The 4th District Court of Appeals in Richmond ruled in March in favor of the university saying that funding the magazine would violate laws separating church and state.
In his suit, Rosenberger pointed out the that UVA founded Jewish and Muslim student publications. But UVA maintains that the Jewish Law Association and a Muslim group that receives money are cultural groups, not religious ones.
The case, the first on the church-state issue the Supreme Court has taken this session, comes at a time when some justices seem to be moving to blur the line between religion and government.
For Jewish activists, the case raises a number of difficult issues, leaving some in a quandary over what position to take.
But across the board, Jewish observers of the court agree that the case, Rosenberger vs. Rector, could have serious ramifications for issues such as religious speech, religious freedom, the establishment clause, equal access and government involvement in religious issues.
The case could even impact the growing debate over government-funded vouchers to fund private and parochial schools, observers say.
For Jewish activists, the main issue is not that the students publish the paper, but that they want the government to pay for it.
The case’s complexity has some Jewish groups including the American Jewish Committee and Agudath Israel, unsure of which side to support.
So far, only the Anti-defamation League has taken a firm stand, supporting the earlier court’s decision.
“We believe that the policy that prohibits government funding of religious groups is proper, appropriate and right under the Constitution,” said Michael Lieberman, ADL’s Washington counsel.
The case bring about a “head on” collision between the First Amendment’s freedom of speech clause and the Establishment Clause, Lieberman said.
ADL decided the establishment clause was the more compelling interest, because a blow to the wall separating church and state could lead to religious favoritism, Lieberman said.
“We’re not just talking about equality. We’re talking about favoritism and the possibility of favoritism, and that’s a problem,” he said.
Lieberman said that the magazine constituted “religious speech” and that the appeals court’s decision did not violate the students’ constitutional rights because religious speech is different from regular speech and should not be accompanied by government funds.
Marc Stern, an attorney for the American Jewish Congress, said the decision was “all but final” that AJCongress would support the university’s position.
The case raises two different issues, Stern said.
On the one hand, it’s a clear-cut of government funding or religion, which violates church-state separation.
But the issue of equal access for religion must also be considered, he said.
The AJCongress official also said that such a ruling could affect school vouchers, the idea of the state giving families money to fund private school education, regardless of religious affiliation.
Samuel Rabinove, American Jewish Committee’s legal counsel, said he could not predict his organization’s stand, but noted that AJCommittee traditionally had supported a firm wall separating church and state.
“We feel that the university subsidizing a religious publication would violate the Establishment Clause of the First Amendment,” he said.
Rabinove called the cases another attempt by those in the religious community who want government to fund religion to “chip away” at the Establishment Clause. Echoing the views of Lieberman and Stern, Rabinove said a decision for the students could “open doors” to more government involvement in religion.
He rejected the students’ claim that the school’s action violated their First Amendment rights.
“The free exercise clause means freedom from government impediment, it was never meant to be freedom from private expense,” he said.
The fervently Orthodox Agudath Israel, which has, at times, supported less of a separation between church and state than other Jewish organization, has not taken a position in this case.
While in similar cases, Agudath Israel has supported less restriction on church-state separation, the factual nuances of this particular case could lead his group to side with the university, or take stand at all, said Abba Cohen, Agudah’s Washington director and counsel.
Agudath Israel feels the court has, at times, been inconsistent and unreasonable in church-state decisions, Cohen said. He said the Supreme Court should use this case to clarify the Establishment Clause with regard to church- state issues.
The Supreme Court will hear the case early next year, and a decision is expected next June.
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