At Jefferson's university: freedom from, not of, religion?

One of the most important First Amendment cases on the docket of the Supreme Court this term is Rosenberger v. University of Virginia. It involves basic issues of fairness deriving from the Free Speech and Free Press provisions of that amendment, and the university's claim that the First Amendment's Religion Clause prohibits public funding of a student publication that is religious in character.

The University of Virginia operates a fund derived from compulsory student fees to support student activities such as public lectures and newspapers. Ronald Rosenberger and other Christian students at the university petitioned for a share of this student activity fund to support the cost of producing an alternative student publication called Wide A wake. The stated purposes of this group are "to publish a magazine of philosophical and religious expression, to facilitate discussion that fosters an atmosphere of sensitivity to and tolerance of Christian viewpoints, and to provide a unifying focus for Christians of multicultural backgrounds." The magazine offered Christian perspectives on issues of public concern such as racism, crisis pregnancy, homosexuality, and the relative morality of capitalism and socialism. Relying on the Establishment Clause, the university denied funding to Wide Awake because the magazine is designed to advocate a particular religious belief.

The Court might use this case to expand its teaching about the Establishment Clause. But it is more likely that the Court will simply reaffirm its free-speech and free-press precedents. These cases clearly teach that the government may not prefer secular speech over religious speech, at least when the speakers are private parties rather than government officials. To do so, the Court has explained, violates principles deeply embedded in the First Amendment, such as governmental neutrality and the equality of all speakers in public forums.

The Court has repeatedly held that the government may not engage in discrimination on the basis of the content of speech, and it has been even clearer in prohibiting discrimination by the government with respect to differing viewpoints on the same matter. This line of cases creates a serious difficulty for the university in the Rosenberger case. The university gave funding to 118 other groups, including the Muslim Students Association, which publishes a magazine that presents an Islamic viewpoint on issues of world affairs. The university also supported the Jewish Law Students Association, a group whose purpose is "to encourage Jewish law students to participate in Jewish activities." How can the university support some religious perspectives and not others? The university maintains that it does not draw an unfair line between various religious groups, but only supports groups engaged in cultural rather than religious activity.

There are several problems with this view of the case. First, the line between religion and culture is a difficult one to draw. Muslims promoting Islam are not religious? If one really thinks that is so in Charlottesville, Virginia, at least it should not be shouted by Americans from the rooftops of Baghdad or Teheran. Second, the distinction that the university draws is difficult for the government to enforce without becoming very intrusive in matters that are literally none of its business. There might indeed be a difference between a devout, religiously observant Jew and a merely "cultural" or "ethnic" Jew, but the government should not be in the business of policing that distinction among the Jewish law students at Charlottesville (or anywhere else). Third, it seems that the commitment of Mr. Jefferson's university to multiculturalism runs along a line that all cultures are equal, except that some cultures are more equal than others. Discrimination of this type is a subtle form of censorship of opinion by the government that should be repugnant to all freedom-loving Americans.

The lower court concluded that discrimination of this sort is clearly prohibited under free-speech and free-press principles, but is required by the provision against a governmental establishment of religion. This interpretation of the First Amendment fragments its provisions and places them at odds with one another. It makes mockery of James Madison's efforts to provide in the First Amendment a strong bulwark against any governmental control over the things of the mind and heart. In the words of the Williamsburg Charter, a bicentennial document celebrating religious freedom, "The right to freedom of religion is the foundation of, and is integrally related to, all other rights and freedoms secured by the Constitution." For that reason it makes much better sense to seek for a harmonious interpretation of the text of the First Amendment than to treat it as a jumble of conflicting goals in some sort of constitutional tug of war.

If the Court rules for the students rather than for the university, it will reinforce the religious pluralism of the Founders of our republic. The First Amendment does not mandate a relentlessly secular society, where religious expression is frowned upon and religious persons are denied the privileges afforded other citizens. A text designed to promote free and open exchange in the marketplace of ideas should not be construed to encourage students to hide the religious bases for their opinions, or leave them unexamined. Under the rule that the university adopted, college students would be less likely to encounter religious perspectives on public controversies, even though religious perspectives may play a significant role in dealing with those very issues outside the university context. That is no way to train students to be informed and responsible citizens. Students at public universities who are exposed to a wide variety of secular viewpoints should also be able to hear a variety of religious voices as well.

The University of Virginia would limit religious speakers on its campus to denominations wealthy enough to supply the funding for student publications that the university discriminatorily denies. Under this approach, students will inevitably graduate with a hollower education than they might have had. This cannot be the right interpretation of the First Amendment, which is committed to protecting open engagement with conflicting ideas. As Justice William Brennan put it: "Religionists no less than members of any other group enjoy the full measure of protection afforded speech, association, and political activity generally. The Establishment Clause ... may not be used as a sword to justify repression of religion or its adherents from any aspect of public life."