In church-state activism today the battle lines usually form between separationists and accommodationists. While there are other positions, these two have emerged dominant. While by the reckoning of most observers the accommodationists have been winning more often than not in Supreme Court decisions, no one wins all the time. In fact, one of the great ironies of Supreme Court jurisprudence, especially in church-state cases, is that the principles which favor a particular group of activists in one case can be used in ways that frustrate that group later. This is exactly what has happened with the religious liberty principles that were used in the Rosenberger case of 1995, the Southworth case of 2000, and an Alabama appeals court case also in 2000.
Rosenberger v. University of Virginia was heralded by many evangelical accommodationists as a sign that religion might get a fair shake in the public square after all. Accommodationists generally believe that from the Everson bus case of 1947 until at least the 1980s the Supreme Court put too much emphasis on the separation of church and state and the “no aid” to religion policy that accompanied separation. Many accommodationists argue that such a strict view of separation favors secularization and often results in discrimination against religious viewpoints. Separationists, by contrast, argue that without the “no aid” rule and a more thoroughgoing separation, the state tends to privilege the majority religion, thereby jeopardizing religious liberty and equality before the law for minority faiths.
The Rosenberger case concerned a student publication at the University of Virginia. The university had a policy of funding student publications, but Wide Awake, as the publication in question was called, had been denied funding because of its explicitly religious content. The university reasoned that since the primary goal of the publication was to proselytize, funding the periodical amounted to a violation of the establishment clause of the First Amendment, and would be an unconstitutional aid to religion. But since the university funded all sorts of other student publications, including some religious ones that did not engage in proselytizing, Ronald Rosenberger, the editor of Wide Awake, sued, claiming discrimination against religion.
This was a tricky case. Was it an establishment clause issue regarding the potential state funding of religion, or was it a free exercise case dealing with discrimination against religion? It nicely framed the differences between accommodationists and separationists. If the Supreme Court decided in favor of the university, accommodationists could claim the case as proof that separationist principles often resulted in discrimination against religion, Rosenberger and Wide Awake would be denied funding solely because the publication was religious. If the Supreme Court decided in favor of Rosenberger and his magazine, separationists could claim that the accommodationist position resulted in the funding of explicitly religious institutions, which had been unconstitutional expressly since 1947 and in actuality much longer than that.
The Supreme Court ruled in Rosenberger’s favor, but it did so by evading both the establishment and free exercise clauses of the First Amendment. Rather, the court accepted Rosenberger’s free speech argument. The majority opinion stated that once the university had opened a limited public forum for speech, it could not then discriminate on the basis of the viewpoint of one of those wishing to enter the forum. The funding of student publications had created the forum, so a denial of funds was a denial of access to the forum. Content discrimination geared toward preserving the purpose for which the limited public forum had been created was acceptable, the Court reasoned. If, for example, the university wanted to open a public forum for the discussion of Shakespeare, it could limit the content of speech to Shakespearean topics. Once having created a public forum limited only by the stipulation that those entering it be students, however, the university, as an arm of the state, could not then discriminate on the basis of the viewpoint of one group’s speech. To do so was viewpoint discrimination, which was an unconstitutional restraint on free speech rights.
Many evangelicals applauded the Court’s Rosenberger decision for being less concerned with establishment clause issues and more concerned about hostility to religion. Editors at Christianity Today supported the decision but argued that the narrow 5 - 4 decision was evidence of the need for a religious equality amendment to the U.S. Constitution, in order to more firmly establish that religious groups cannot be singled out for discrimination on the basis of the establishment clause of the First Amendment.1 This was an example of the oft-argued accommodationist position that separation of church and state of the “no aid” to religion type either emanates from or contributes to a secular hostility to religion. From the accommodationist perspective, Rosenberger put the Court into the business of protecting religious speech even at the risk of government funding of religion. Many evangelicals, therefore, viewed this as a wholesome example of government accommodation of religion and not as an egregious establishment thereof.
Little noted at the time of the Rosenberger ruling, Justice Sandra Day O’Connor suggested in a concurring opinion that at some point there might be students who would protest the use of their student fees to advance religious or political views with which they disagreed. She wrote, “Although the question is not presented here, I note the possibility that the student fee is susceptible to a free speech clause challenge by an objecting student that she should not be compelled to pay for speech with which she disagrees.”2 In other words, if Rosenberger could make a claim to funding, perhaps other students would object to their student fees being used to fund speech they didn’t like.
O’Connor’s passage was practically an invitation for students to challenge a university’s mandatory fee system. It wasn’t long before a few evangelical students at the University of Wisconsin did so. The case was called University of Wisconsin v. Southworth (2000).
The facts of the case are as follows: Scott Southworth and some other evangelical students at the University of Wisconsin challenged their school’s mandatory fee system, arguing that their student fees were being used to fund all sorts of student groups with which they strongly disagreed. They listed in particular several liberal and/or secular organizations, such as Amnesty International, the Campus Women’s Center, the Internationalist Socialist Organization, the Lesbian/Gay/Bisexual Campus Center, the National Organization for Women, and the Wisconsin Public Interest Research Group. Southworth and the other students argued that the right of free speech includes the right not to speak, and that by using their fees to fund left-wing groups, the university was forcing them to speak in ways they did
not believe.3
Many evangelicals lauded Southworth’s effort. In an article entitled “de-Funding the Left,” found on the Cedarville (Ohio) College Website, the author compared Southworth v. University of Wisconsin to another famous battle, David v. Goliath. Southworth, of course, was David up against the left-leaning Goliath of the Wisconsin Student Association, and by implication the fee systems of most major universities.4
In the first round of hearings, a federal judge bought Southworth’s argument and ruled that the mandatory fees were a violation of the evangelical students’ free speech rights. The court even issued an order that laid out a mechanism for allowing the students to opt out of paying fees to groups with which they disagreed. The appeals court affirmed the lower court ruling. Attorneys for the University of Wisconsin argued in both instances that an important part of the mission of the university was to encourage the dissemination of a wide variety of viewpoints. In keeping with this mission, mandatory student fees were used to create a limited public forum fostering free speech and divergent ideas. The lower court, the university’s lawyers argued, confused the funding of a forum for all speech with the funding of one particular viewpoint. In other words, Southworth’s fees were paying for the forum, not the content thereof.
Unlike David when he fought Goliath, Southworth’s contest was a three-fall match, and Goliath had one round left—the Supreme Court. In a rare unanimous decision the court ruled in favor of the university. The decision shocked some obervers, including a few who had been present when the case was argued before the court. Jan LaRue, of the Family Research Council, was quoted as saying, “Everyone who witnessed the oral argument in this case clearly thought it would go the other way.”5 Apparently the questions the justices posed to the university attorney left the impression that the Court was leaning toward Southworth. In the opinion, however, all the justices agreed that at the University of Wisconsin student fees were not paying for any particular group’s speech, but rather for the limited forum in which that speech took place. Southworth and his allies, therefore, had no leg to stand on. They were not, in the Court’s view, being forced to fund the various liberal groups they found offensive but merely the forum where all groups were theoretically welcomed to make their claims. The Court did stipulate that a limited forum must be truly neutral, something that Southworth claimed was not the case. He and his allies were particularly disturbed that the funding process seemed to favor liberal groups. The Supreme Court, therefore, remanded the case to the District Court to ensure that the funding for groups participating in the limited public forum would be done in a neutral manner.
Does the phrase “limited public forum” sound familiar? It is the same expression that was used in Rosenberger. In that case even a religiously sectarian publication with proselytism as its chief aim could receive university funding because the limited public forum had already been established. So, it was no violation for student fees at the University of Virginia to fund a limited public forum where explicitly religious views were to be advocated. Conversely, at the University of Wisconsin evangelical students could not opt out of paying for a limited public forum where views they deemed at odds with their faith were to be disseminated. Virginia wasn’t really funding religion, just a public forum, and Wisconsin wasn’t really funding liberal groups, just a public forum.
Ironically, but not surprisingly, some evangelical groups that had applauded Rosenberger were shocked and dismayed by Southworth. In Focus, the Web site magazine of James Dobson’s Focus on the Family, issued a headline “Court OKs Forced Student Fees.” The In Focus staff writer opened with this italicized line, “College students can be forced to financially support causes with which they disagree, the Supreme Court ruled in a shocking decision this week.” The author continued by pointing out that the aforementioned LaRue, of the Family Research Council, “is flabbergasted that the High Court unanimously upheld the University of Wisconsin’s mandatory student fee system.”6
The plot would thicken even more, however, when the principle used to decide Rosenberger took another unexpected turn in a case in Alabama. This case concerned an Alabama law that banned the use of public funds or facilities at universities for groups that advocate activities that violate Alabama’s sodomy and sexual misconduct laws. In short, no funds were to be dispersed to student groups that advocate gay and lesbian lifestyles. Recognizing the free-speech implications of such a law, legislators even included a section in the statute that read in part, “This section shall not be construed to be a prior restraint of the first amendment protected speech. It shall not apply to any organization or group whose activities are limited solely to the political advocacy of a change in the sodomy and sexual misconduct laws of this state.”7
The law was challenged by the Gay Lesbian Bisexual Alliance (GLBA), a student organization at the University of South Alabama. GLBA is an officially recognized campus organization whose purpose is to educate people in the university community about gay, lesbian, and bisexual issues and to provide a support system for gay, lesbian, and bisexual students. On the basis of the Alabama law cited above, a university dean denied GLBA’s request for funds to purchase World AIDS Day posters and also for speakers that GLBA wanted to bring to campus. The university also effectively denied the student group on-campus banking privileges by informing them that their funds could be frozen in an on-campus account as a result of the Alabama law. The GLBA, therefore, filed suit in U.S. District Court claiming, in part, that the Alabama law amounted to “viewpoint discrimination.” Sound familiar? The Supreme Court, recall, had ruled in Rosenberger that once a university opens a public forum for speech, it cannot discriminate on the basis of the particular viewpoint of the student groups applying for funds.
The irony here is striking. In Rosenberger, the University of Virginia had denied funding on the basis of Wide Awake’s explicitly evangelical views. At the University of South Alabama, the university was denying funds on the basis of GLBA’s explicitly gay agenda. Taken together, the cases pitted evangelicals and gays on the same side against their universities, both groups appealing to the Supreme Court’s doctrine that viewpoint discrimination is unconstitutional. To bring the Southworth case into the mix makes for even more irony in that Southworth was an evangelical, like those involved in the Rosenberger case, who attempted to keep his student fees from being dispersed to groups such as the University of South Alabama’s GLBA.
The district court found in favor of GLBA, as did the Eleventh Circuit Court of Appeals. The latter pointed out that the Supreme Court has recognized three types of public forums—nonpublic forums, traditional public forums, and limited public forums. The government’s latitude in regulating speech is widest in nonpublic forums—prisons and military bases, for example—and most narrow in traditional forums—public parks and street corners. In the latter, nearly anything short of inciting a riot or revolution is permissible. Limited forums, as was emphasized in Rosenberger, present the middle scenario in which the government can limit the content of the forum ahead of time, but cannot discriminate on the basis of viewpoint once the forum is in place. As the appellate court wrote: “Although the government is not required to create such forums, once it does so the Constitution constrains its power to regulate speech within the forum.”8 The appeals court then cited Rosenberger explicitly, saying that case “makes clear that USA’s system for funding student groups created a limited public forum.”9 The court then continued for a full paragraph outlining how the University of Virginia’s discrimination against a Christian publication was nearly the same as USA’s discrimination against a gay student organization. The appeals court then restated the distinction between content discrimination, aimed at preserving the purpose for which a limited public forum had been created, and viewpoint discrimination based on the particular ideas of the student groups. The court wrote, “The [Alabama] statute discriminates against one particular viewpoint because state funding of groups which foster or promote compliance with the sodomy or sexual misconduct laws remains permissible. This is blatant viewpoint discrimination.”10
In other words, in a limited public forum, speech that encourages violation of sodomy laws is protected just as much as speech advocating compliance with those laws. While this may seem odd to some, it is based on a history of cases in which the Supreme Court has given wide latitude for speech and, conversely, severely restricted the government’s role in regulating speech. In a limited or traditional forum, about the only kind of speech that a government can shut down is that which threatens to lead to imminent lawless action; such as when a speaker is inciting a riot or revolution.11 The appeals court, therefore, not only found in favor of the gay and lesbian students, but it also ruled the Alabama statute unconstitutional on its face.
What all this shows is that church-state jurisprudence, like all areas of constitutional law, is quite complex. No group is ever going to be satisfied with the court. Sometimes evangelical accommodationists like the court. Such was the situation with Rosenberger. When the Rosenberger principles were applied in Southworth, however, the evangelicals lost. Seemingly, traditional morality, of the type espoused by evangelicals, lost again in the Alabama case. But in all three cases the winners were those who desire first and foremost a wide public forum for the dissemination of all types of ideas.
These cases, taken together, suggest that the way for evangelical Christians to combat the secular left is to get into the marketplace of ideas rather than attempting to limit what is said there. This is the difference between Rosenberger and Southworth. Before his case ever went to the Supreme Court, Rosenberger told how and why he started Wide Awake. “Every viewpoint was out there in the public square, being subsidized by the university, except the Christian viewpoint,” he was quoted as saying.12 His response, therefore, was to get his views into the forum. Southworth, by contrast, said, “As a conservative and a Christian, it was frustrating to see the money going to organizations I personally disagree with.”13 His approach, then, was to defund the speech he didn’t like. To the extent that those viewpoints were unfairly advantaged by the University of Wisconsin’s fee system, Southworth’s effort was laudable, but to the extent that he and his allies were attempting to narrow the limited public forum, as the Supreme Court ruled that they were, their efforts would have had the effect of reducing the space available for fully free speech. Moreover, had Southworth won, it would have become potentially more difficult to advance religious messages in a limited public forum that was funded by a university because secular students could stipulate that their funds not be used for religious speech.
On the other hand, there is a troubling aspect to all three cases that make them similar. Southworth and the Alabama case pose the thorny issue of government funding, however indirect, for all kinds of left wing ideas. Whether appalling morally or just plan loony socially, they often run counter to the majority of those whose tax monies or student fees pay the bills. On the loony side, a Florida State student group allegedly promoted skinny dipping as part of a university-funded clearinghouse.14 In a democracy, people are assumed to have some say over where their money is spent. In the Rosenberger case we were faced with state funding of religion, even sectarian proselytizing religion. This was not government funding for secular-subject textbooks for students at religious schools or money for bus fare for parochial school students. This was state money used to defray the cost of publishing a magazine whose expressed purpose was to win others to the Christian faith. Historically, this has been deemed unconstitutional, and the idea of state funding of religion is deeply troubling even to many evangelical Christians. There are two things that have mitigated this problem somewhat. First, the money in the Rosenberger case went to the printer and not directly to Wide Awake, so the funding was indirect. Second, as outlined above, universities, so the court held, use student funds to create limited forums, not to advance particular viewpoints therein.
As troubling as all three cases may be in this respect, however, it is probably better for religious liberty to have more, rather than fewer, open forums. Those who are seriously religious, even evangelical, and at the same time separationist, must grapple with the problem that has arisen as government has become ever more pervasive in the past half century. If more and more cultural space is under the auspices of the state, and if the state must be strictly neutral with regard to religion, more and more cultural space will become secular. Perhaps the Rosenberger case is a fair way of dealing with secularization and the apparent discrimination that can result. If religious viewpoints cannot hold their own in the marketplace of ideas, that is one thing. If there are fewer and fewer such forums where religious people can press their claims, however, that is even worse. But, if there is to be this openness toward religious speech in a limited public forum, evangelicals cannot then complain when all manner of other speech is also permitted. Better Rosenberger than Southworth.
FOOTNOTES
1 Steven McFarland, “A Tenuous Victory for Religious Freedom,” Christianity Today, Aug. 14, 1995, pp. 18, 19.
2 Ronald W. Rosenberger v. Rector and Vistors of the University of Virginia (1995), 115 S. Ct. 2527.
3 Board of Regents of the University of Wisconsin v. Southworth et. al. (2000), 98, 1189.
4 Ben Taylor, “de-Funding the Left,” Cedarville College, www.boundless.org/1999/features/a0000023.html.
5 Martha Kleder, “Court OKs Forced Student Fees,” Family News in Focus, May 5, 2000, p. 1.
6 Ibid.
7 Gay Lesbian Bisexual Alliance v. Pryor, United States Court of Appeals, Eleventh Circuit, No. 96-6143, p. 1.
8 Ibid., p. 3.
9 Ibid., p. 4.
10 Ibid.
11 See Brandenburg v. Ohio (1969).
12 “Time to Strip the Lemon Pledge?” Christianity Today, Jan. 9, 1995, p. 4.
13 “Supreme Court Upholds Mandatory Student Fees,” Freedom Forum Online, Mar. 22, 2000, p. 1.
14 Taylor, p. 2.
Barry Hankins is assistant professor of history and church-state studies at the J. M. Dawson Institute of Church State Studies at Baylor University, Waco, Texas.
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