RONALD W. ROSENBERGER, et al., Petitioners
v.
RECTOR and VISITORS OF THE UNIVERSITY OF VIRGINIA et al.
No. 94-329
In the Supreme Court of the United States
On writ of certiorari to the United States Court of Appeals for
the Fourth Circuit. 18 F.3d 269, reversed.
Kennedy, J., delivered the opinion of the Court, in which
Rehnquist, C.J., and O'Connor, Scalia, and Thomas, JJ., joined.
O'Connor, J., and Thomas, J., filed concurring opinions. Souter,
J., filed a dissenting opinion, in which Stevens, Ginsburg, and
Breyer, JJ., joined.
Argued March 1, 1995
Decided June 29, 1995
:::::::::::::::::::::::::::::::::: SYLLABUS
::::::::::::::::::::::::::::::::
Respondent University of Virginia, a state instrumentality,
authorizes payments from its Student Activities Fund (SAF) to
outside contractors for the printing costs of a variety of
publications issued by student groups called "Contracted
Independent Organizations" (CIOs). The SAF receives its money from
mandatory student fees and is designed to support a broad range of
extracurricular student activities related to the University's
educational purpose. CIOs must include in their dealings with
third parties and in all written materials a disclaimer stating
that they are independent of the University and that the
University is not responsible for them. The University withheld
authorization for payments to a printer on behalf of petitioners'
CIO, Wide Awake Productions (WAP), solely because its student
newspaper, Wide Awake: A Christian Perspective at the University
of Virginia, "primarily promotes or manifests a particular
belie[f] in or about a deity or an ultimate reality," as
prohibited by the University's SAF Guidelines. Petitioners filed
this suit under 42 U.S.C. ¤ 1983, alleging, inter alia, that the
refusal to authorize payment violated their First Amendment right
to freedom of speech. After the District Court granted summary
judgment for the University, the Fourth Circuit affirmed, holding
that the University's invocation of viewpoint discrimination to
deny third-party payment violated the Speech Clause, but
concluding that the discrimination was justified by the necessity
of complying with the Establishment Clause.
Held:
1. The Guideline invoked to deny SAF support, both in its terms
and in its application to these petitioners, is a denial of their
right of free speech. Pp. 7-16.
(a) The Guideline violates the principles governing speech in
limited public forums, which apply to the SAF under, e.g., Perry
Ed. Assn. v. Perry Local Educators' Assn., 460 U.S. 37, 46-47. In
determining whether a State is acting within its power to preserve
the limits it has set for such a forum so that the exclusion of a
class of speech there is legitimate, see, e.g., id., at 49, this
Court has observed a distinction between, on the one hand, content
discrimination-i.e., discrimination against speech because of its
subject matter-which may be permissible if it preserves the
limited forum's purposes, and, on the other hand, viewpoint
discrimination-i.e., discrimination because of the speaker's
specific motivating ideology, opinion, or perspective-which is
presumed impermissible when directed against speech otherwise
within the forum's limitations, see id., at 46. The most recent
and most apposite case in this area is Lamb's Chapel v. Center
Moriches Union Free School Dist., 508 U.S. __, __, in which the
Court held that permitting school property to be used for the
presentation of all views on an issue except those dealing with it
from a religious standpoint constitutes prohibited viewpoint
discrimination. Here, as in that case, the State's actions are
properly interpreted as unconstitutional viewpoint discrimination
rather than permissible line-drawing based on content: By the very
terms of the SAF prohibition, the University does not exclude
religion as a subject matter, but selects for disfavored treatment
those student journalistic efforts with religious editorial
viewpoints. Pp. 7-11.
(b) The University's attempt to escape the consequences of Lamb's
Chapel by urging that this case involves the provision of funds
rather than access to facilities is unavailing. Although it may
regulate the content of expression when it is the speaker or when
it enlists private entities to convey its own message, Rust v.
Sullivan, 500 U.S. 173; Widmar v. Vincent, 454 U.S. 263, 276, the
University may not discriminate based on the viewpoint of private
persons whose speech it subsidizes, Regan v. Taxation with
Representation of Wash., 461 U.S. 540, 548. Its argument that the
scarcity of public money may justify otherwise impermissible
viewpoint discrimination among private speakers is simply wrong.
Pp. 11-14.
(c) Vital First Amendment speech principles are at stake here. The
Guideline at issue has a vast potential reach: The term "promotes"
as used there would comprehend any writing advocating a
philosophic position that rests upon a belief (or nonbelief) in a
deity or ultimate reality, while the term "manifests" would bring
within the prohibition any writing resting upon a premise
presupposing the existence (or nonexistence) of a deity or
ultimate reality. It is difficult to name renowned thinkers whose
writings would be accepted, save perhaps for articles disclaiming
all connection to their ultimate philosophy. Pp. 14-16.
2. The violation following from the University's denial of SAF
support to petitioners is not excused by the necessity of
complying with the Establishment Clause. Pp. 16-25.
(a) The governmental program at issue is neutral toward religion.
Such neutrality is a significant factor in upholding programs in
the face of Establishment Clause attack, and the guarantee of
neutrality is not offended where, as here, the government follows
neutral criteria and even-handed policies to extend benefits to
recipients whose ideologies and viewpoints, including religious
ones, are broad and diverse, Board of Ed. of Kiryas Joel v.
Grumet, 512 U.S. __, __. There is no suggestion that the
University created its program to advance religion or aid a
religious cause. The SAF's purpose is to open a forum for speech
and to support various student enterprises, including the
publication of newspapers, in recognition of the diversity and
creativity of student life. The SAF Guidelines have a separate
classification for, and do not make third-party payments on behalf
of, "religious organizations," and WAP did not seek a subsidy
because of its Christian editorial viewpoint; it sought funding
under the Guidielines as a "student . . . communications . . .
grou[p]." Neutrality is also apparent in the fact that the
University has taken pains to disassociate itself from the private
speech involved in this case. The program's neutrality
distinguishes the student fees here from a tax levied for the
direct support of a church or group of churches, which would
violate the Establishment Clause. Pp. 16-21.
(b) This case is not controlled by the principle that special
Establishment Clause dangers exist where the government makes
direct money payments to sectarian institutions, see, e.g., Roemer
v. Board of Public Works, 426 U.S. 736, 747, since it is
undisputed that no public funds flow directly into WAP's coffers
under the program at issue. A public university does not violate
the Establishment Clause when it grants access to its facilities
on a religion-neutral basis to a wide spectrum of student groups,
even if some of those groups would use the facilities for
devotional exercises. See e.g., Widmar, 474 U.S., at 269. This is
so even where the upkeep, maintenance, and repair of those
facilities is paid out of a student activities fund to which
students are required to contribute. Id., at 265. There is no
difference in logic or principle, and certainly no difference of
constitutional significance, between using such funds to operate a
facility to which students have access, and paying a third-party
contractor to operate the facility on its behalf. That is all that
is involved here: The University provides printing services to a
broad spectrum of student newspapers. Were the contrary view to
become law, the University could only avoid a constitutional
violation by scrutinizing the content of student speech, lest it
contain too great a religious message. Such censorship would be
far more inconsistent with the Establishment Clause's dictates
than would governmental provision of secular printing services on
a religion-blind basis. Pp. 21-25.
18 F. 3d 269, reversed.
Kennedy, J., delivered the opinion of the Court, in which
Rehnquist, C.J., and O'Connor, Scalia, and Thomas, JJ., joined.
O'Connor, J., and Thomas, J., filed concurring opinions. Souter,
J., filed a dissenting opinion, in which Stevens, Ginsburg, and
Breyer, JJ., joined.
::::::::::::::::::::::::::::::::::: OPINION
::::::::::::::::::::::::::::::::
JUSTICE KENNEDY delivered the opinion of the Court.
The University of Virginia, an instrumentality of the Commonwealth
for which it is named and thus bound by the First and Fourteenth
Amendments, authorizes the payment of outside contractors for the
printing costs of a variety of student publications. It withheld
any authorization for payments on behalf of petitioners for the
sole reason that their student paper "primarily promotes or
manifests a particular belie[f] in or about a deity or an ultimate
reality." That the paper did promote or manifest views within the
defined exclusion seems plain enough. The challenge is to the
University's regulation and its denial of authorization, the case
raising issues under the Speech and Establishment Clauses of the
First Amendment.
I
The public corporation we refer to as the "University" is
denominated by state law as "the Rector and Visitors of the
University of Virginia," Va. Code Ann. 23-69 (1993), and it is
responsible for governing the school, see 23-69 to 23-80.
Founded by Thomas Jefferson in 1819, and ranked by him, together
with the authorship of the Declaration of Independence and of the
Virginia Act for Religious Freedom, Va. Code Ann. 57-1, as one
of his proudest achievements, the University is among the Nation's
oldest and most respected seats of higher learning. It has more
than 11,000 undergraduate students, and 6,000 graduate and
professional students. An understanding of the case requires a
somewhat detailed description of the program the University
created to support extracurricular student activities on its
campus.
Before a student group is eligible to submit bills from its
outside contractors for payment by the fund described below, it
must become a "Contracted Independent Organization" (CIO). CIO
status is available to any group the majority of whose members are
students, whose managing officers are fulltime students, and that
complies with certain procedural requirements. App. to Pet. for
Cert. 2a. A CIO must file its constitution with the University;
must pledge not to discriminate in its membership; and must
include in dealings with third parties and in all written
materials a disclaimer, stating that the CIO is independent of the
University and that the University is not responsible for the CIO.
App. 27-28. CIOs enjoy access to University facilities, including
meeting rooms and computer terminals. Id., at 30. A standard
agreement signed between each CIO and the University provides that
the benefits and opportunities afforded to CIOs "should not be
misinterpreted as meaning that those organizations are part of or
controlled by the University, that the University is responsible
for the organizations' contracts or other acts or omissions, or
that the University approves of the organizations' goals or
activities." Id., at 26.
All CIOs may exist and operate at the University, but some are
also entitled to apply for funds from the Student Activities Fund
(SAF). Established and governed by University Guidelines, the
purpose of the SAF is to support a broad range of extracurricular
student activities that "are related to the educational purpose of
the University." App. to Pet. for Cert. 61a. The SAF is based on
the University's "recogni[tion] that the availability of a wide
range of opportunities" for its students "tends to enhance the
University environment." App. 26. The Guidelines require that it
be administered "in a manner consistent with the educational
purpose of the University as well as with state and federal law."
App. to Pet. for Cert. 61a. The SAF receives its money from a
mandatory fee of $14 per semester assessed to each full-time
student. The Student Council, elected by the students, has the
initial authority to disburse the funds, but its actions are
subject to review by a faculty body chaired by a designee of the
Vice President for Student Affairs. Cf. id., at 63a-64a.
Some, but not all, CIOs may submit disbursement requests to the
SAF. The Guidelines recognize 11 categories of student groups that
may seek payment to third-party contractors because they "are
related to the educational purpose of the University of Virginia."
Id., at 61a-62a. One of these is "student news, information,
opinion, entertainment, or academic communications media groups."
Id., at 61a. The Guidelines also specify, however, that the costs
of certain activities of CIOs that are otherwise eligible for
funding will not be reimbursed by the SAF. The student activities
which are excluded from SAF support are religious activities,
philanthropic contributions and activities, political activities,
activities that would jeopardize the University's tax exempt
status, those which involve payment of honoraria or similar fees,
or social entertainment or related expenses. Id., at 62a-63a. The
prohibition on "political activities" is defined so that it is
limited to electioneering and lobbying. The Guidelines provide
that "[t]hese restrictions on funding political activities are not
intended to preclude funding of any otherwise eligible student
organization which . . . espouses particular positions or
ideological viewpoints, including those that may be unpopular or
are not generally accepted." Id., at 65a-66a. A "religious
activity," by contrast, is defined as any activity that "primarily
promotes or manifests a particular belie[f] in or about a deity or
an ultimate reality." Id., at 66a.
The Guidelines prescribe these criteria for determining the
amounts of third-party disbursements that will be allowed on
behalf of each eligible student organization: the size of the
group, its financial self-sufficiency, and the University-wide
benefit of its activities. If an organization seeks SAF support,
it must submit its bills to the Student Council, which pays the
organization's creditors upon determining that the expenses are
appropriate. No direct payments are made to the student groups.
During the 1990-1991 academic year, 343 student groups qualified
as CIOs. One hundred thirty-five of them applied for support from
the SAF, and 118 received funding. Fifteen of the groups were
funded as "student news, information, opinion, entertainment, or
academic communications media groups."
Petitioners' organization, Wide Awake Productions (WAP), qualified
as a CIO. Formed by petitioner Ronald Rosenberger and other
undergraduates in 1990, WAP was established "[t]o publish a
magazine of philosophical and religious expression," "[t]o
facilitate discussion which fosters an atmosphere of sensitivity
to and tolerance of Christian viewpoints," and "[t]o provide a
unifying focus for Christians of multicultural backgrounds." App.
67. WAP publishes Wide Awake: A Christian Perspective at the
University of Virginia. The paper's Christian viewpoint was
evident from the first issue, in which its editors wrote that the
journal "offers a Christian perspective on both personal and
community issues, especially those relevant to college students at
the University of Virginia." App. 45. The editors committed the
paper to a two-fold 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." Ibid. The first issue had articles about
racism, crisis pregnancy, stress, prayer, C. S. Lewis' ideas about
evil and free will, and reviews of religious music. In the next
two issues, Wide Awake featured stories about homosexuality,
Christian missionary work, and eating disorders, as well as music
reviews and interviews with University professors. Each page of
Wide Awake, and the end of each article or review, is marked by a
cross. The advertisements carried in Wide Awake also reveal the
Christian perspective of the journal. For the most part, the
advertisers are churches, centers for Christian study, or
Christian bookstores. By June 1992, WAP had distributed about
5,000 copies of Wide Awake to University students, free of charge.
WAP had acquired CIO status soon after it was organized. This is
an important consideration in this case, for had it been a
"religious organization," WAP would not have been accorded CIO
status. As defined by the Guidelines, a "religious organization"
is "an organization whose purpose is to practice a devotion to an
acknowledged ultimate reality or deity." App. to Pet. for Cert.
66a. At no stage in this controversy has the University contended
that WAP is such an organization.
A few months after being given CIO status, WAP requested the SAF
to pay its printer $5,862 for the costs of printing its newspaper.
The Appropriations Committee of the Student Council denied WAP's
request on the ground that Wide Awake was a "religious activity"
within the meaning of the Guidelines, i.e., that the newspaper
"promote[d] or manifest[ed] a particular belie[f] in or about a
deity or an ultimate reality." Ibid. It made its determination
after examining the first issue. App. 54. WAP appealed the denial
to the full Student Council, contending that WAP met all the
applicable Guidelines and that denial of SAF support on the basis
of the magazine's religious perspective violated the Constitution.
The appeal was denied without further comment, and WAP appealed to
the next level, the Student Activities Committee. In a letter
signed by the Dean of Students, the committee sustained the denial
of funding. App. 55.
Having no further recourse within the University structure, WAP,
Wide Awake, and three of its editors and members filed suit in the
United States District Court for the Western District of Virginia,
challenging the SAF's action as violative of Rev. Stat. 1979, 42
U.S.C. 1983. They alleged that refusal to authorize payment of
the printing costs of the publication, solely on the basis of its
religious editorial viewpoint, violated their rights to freedom of
speech and press, to the free exercise of religion, and to equal
protection of the law. They relied also upon Article I of the
Virginia Constitution and the Virginia Act for Religious Freedom,
Va. Code Ann. 57-1, 57-2 (1986 and Supp. 1994), but did not
pursue those theories on appeal. The suit sought damages for the
costs of printing the paper, injunctive and declaratory relief,
and attorney's fees.
On cross-motions for summary judgment, the District Court ruled
for the University, holding that denial of SAF support was not an
impermissible content or viewpoint discrimination against
petitioners' speech, and that the University's Establishment
Clause concern over its "religious activities" was a sufficient
justification for denying payment to third-party contractors. The
court did not issue a definitive ruling on whether reimbursement,
had it been made here, would or would not have violated the
Establishment Clause. 795 F.Supp. 175, 181-182 (WD Va. 1992).
The United States Court of Appeals for the Fourth Circuit, in
disagreement with the District Court, held that the Guidelines did
discriminate on the basis of content. It ruled that, while the
State need not underwrite speech, there was a presumptive
violation of the Speech Clause when viewpoint discrimination was
invoked to deny third-party payment otherwise available to CIOs.
18 F.3d 269, 279-281 (1994). The Court of Appeals affirmed the
judgment of the District Court nonetheless, concluding that the
discrimination by the University was justified by the "compelling
interest in maintaining strict separation of church and state."
Id., at 281.
II
It is axiomatic that the government may not regulate speech based
on its substantive content or the message it conveys. Police Dept.
of Chicago v. Mosley, 408 U.S. 92, 96 (1972). Other principles
follow from this precept. In the realm of private speech or
expression, government regulation may not favor one speaker over
another. City Council of Los Angeles v. Taxpayers for Vincent, 466
U.S. 789, 804 (1984). Discrimination against speech because of its
message is presumed to be unconstitutional. See Turner
Broadcasting System, Inc. v. FCC, 512 U.S. __, __ (1994) (slip
op., at 16-19). These rules informed our determination that the
government offends the First Amendment when it imposes financial
burdens on certain speakers based on the content of their
expression. Simon & Schuster, Inc. v. Members of N. Y. State Crime
Victims Bd., 502 U.S. 105, 115 (1991). When the government targets
not subject matter but particular views taken by speakers on a
subject, the violation of the First Amendment is all the more
blatant. See R. A. V. v. St. Paul, 505 U.S. 377, 391 (1992).
Viewpoint discrimination is thus an egregious form of content
discrimination. The government must abstain from regulating speech
when the specific motivating ideology or the opinion or
perspective of the speaker is the rationale for the restriction.
See Perry Ed. Assn. v. Perry Local Educators' Assn., 460 U.S. 37,
46 (1983).
These principles provide the framework forbidding the State from
exercising viewpoint discrimination, even when the limited public
forum is one of its own creation. In a case involving a school
district's provision of school facilities for private uses, we
declared that "[t]here is no question that the District, like the
private owner of property, may legally preserve the property under
its control for the use to which it is dedicated." Lamb's Chapel
v. Center Moriches Union Free School Dist., 508 U.S. __, __ (slip
op., at 5-7) (1993). The necessities of confining a forum to the
limited and legitimate purposes for which it was created may
justify the State in reserving it for certain groups or for the
discussion of certain topics. See, e.g., Cornelius v. NAACP Legal
Defense & Ed. Fund, Inc., 473 U.S. 788, 806 (1985); Perry Ed.
Assn., supra, at 49. Once it has opened a limited forum, however,
the State must respect the lawful boundaries it has itself set.
The State may not exclude speech where its distinction is not
"reasonable in light of the purpose served by the forum,"
Cornelius, supra, at 804-806; see also Perry Ed. Assn., supra, at
46, 49, nor may it discriminate against speech on the basis of its
viewpoint, Lamb's Chapel, supra, at __ (slip op., at 6-7); see
also Perry Ed. Assn., supra, at 46; R. A. V., supra, at 386-388,
391-393; cf. Texas v. Johnson, 491 U.S. 397, 414-415 (1989). Thus,
in determining whether the State is acting to preserve the limits
of the forum it has created so that the exclusion of a class of
speech is legitimate, we have observed a distinction between, on
the one hand, content discrimination, which may be permissible if
it preserves the purposes of that limited forum, and, on the other
hand, viewpoint discrimination, which is presumed impermissible
when directed against speech otherwise within the forum's
limitations. See Perry Ed. Assn., supra, at 46.
The SAF is a forum more in a metaphysical than in a spatial or
geographic sense, but the same principles are applicable. See,
e.g., Perry Ed. Assn., supra, at 46-47 (forum analysis of a school
mail system); Cornelius, supra, at 801 (forum analysis of
charitable contribution program). The most recent and most
apposite case is our decision in Lamb's Chapel, supra. There, a
school district had opened school facilities for use after school
hours by community groups for a wide variety of social, civic, and
recreational purposes. The district, however, had enacted a formal
policy against opening facilities to groups for religious
purposes. Invoking its policy, the district rejected a request
from a group desiring to show a film series addressing various
child-rearing questions from a "Christian perspective." There was
no indication in the record in Lamb's Chapel that the request to
use the school facilities was "denied for any reason other than
the fact that the presentation would have been from a religious
perspective." 508 U.S., at __ (slip op., at 8-9). Our conclusion
was unanimous: "[I]t discriminates on the basis of viewpoint to
permit school property to be used for the presentation of all
views about family issues and child-rearing except those dealing
with the subject matter from a religious standpoint." Ibid.
The University does acknowledge (as it must in light of our
precedents) that "ideologically driven attempts to suppress a
particular point of view are presumptively unconstitutional in
funding, as in other contexts," but insists that this case does
not present that issue because the Guidelines draw lines based on
content, not viewpoint. Brief for Respondents 17, n. 10. As we
have noted, discrimination against one set of views or ideas is
but a subset or particular instance of the more general phenomenon
of content discrimination. See, e.g., R. A. V., supra, at 391.
And, it must be acknowledged, the distinction is not a precise
one. It is, in a sense, something of an understatement to speak of
religious thought and discussion as just a viewpoint, as distinct
from a comprehensive body of thought. The nature of our origins
and destiny and their dependence upon the existence of a divine
being have been subjects of philosophic inquiry throughout human
history. We conclude, nonetheless, that here, as in Lamb's Chapel,
viewpoint discrimination is the proper way to interpret the
University's objections to Wide Awake. By the very terms of the
SAF prohibition, the University does not exclude religion as a
subject matter but selects for disfavored treatment those student
journalistic efforts with religious editorial viewpoints. Religion
may be a vast area of inquiry, but it also provides, as it did
here, a specific premise, a perspective, a standpoint from which a
variety of subjects may be discussed and considered. The
prohibited perspective, not the general subject matter, resulted
in the refusal to make third-party payments, for the subjects
discussed were otherwise within the approved category of
publications.
The dissent's assertion that no viewpoint discrimination occurs
because the Guidelines discriminate against an entire class of
viewpoints reflects an insupportable assumption that all debate is
bipolar and that anti-religious speech is the only response to
religious speech. Our understanding of the complex and
multifaceted nature of public discourse has not embraced such a
contrived description of the marketplace of ideas. If the topic of
debate is, for example, racism, then exclusion of several views on
that problem is just as offensive to the First Amendment as
exclusion of only one. It is as objectionable to exclude both a
theistic and an atheistic perspective on the debate as it is to
exclude one, the other, or yet another political, economic, or
social viewpoint. The dissent's declaration that debate is not
skewed so long as multiple voices are silenced is simply wrong;
the debate is skewed in multiple ways.
The University's denial of WAP's request for third-party payments
in the present case is based upon viewpoint discrimination not
unlike the discrimination the school district relied upon in
Lamb's Chapel and that we found invalid. The church group in
Lamb's Chapel would have been qualified as a social or civic
organization, save for its religious purposes. Furthermore, just
as the school district in Lamb's Chapel pointed to nothing but the
religious views of the group as the rationale for excluding its
message, so in this case the University justifies its denial of
SAF participation to WAP on the ground that the contents of Wide
Awake reveal an avowed religious perspective. See supra, at 5. It
bears only passing mention that the dissent's attempt to
distinguish Lamb's Chapel is entirely without support in the law.
Relying on the transcript of oral argument, the dissent seems to
argue that we found viewpoint discrimination in that case because
the government excluded Christian, but not atheistic, viewpoints
from being expressed in the forum there. Post, at 37-38, and n.
13. The Court relied on no such distinction in holding that
discriminating against religious speech was discriminating on the
basis of viewpoint. There is no indication in the opinion of the
Court (which, unlike an advocate's statements at oral argument, is
the law) that exclusion or inclusion of other religious or
antireligious voices from that forum had any bearing on its
decision.
The University tries to escape the consequences of our holding in
Lamb's Chapel by urging that this case involves the provision of
funds rather than access to facilities. The University begins with
the unremarkable proposition that the State must have substantial
discretion in determining how to allocate scarce resources to
accomplish its educational mission. Citing our decisions in Rust
v. Sullivan, 500 U.S. 173 (1991), Regan v. Taxation with
Representation of Wash., 461 U.S. 540 (1983), and Widmar v.
Vincent, 454 U.S. 263 (1981), the University argues that
content-based funding decisions are both inevitable and lawful.
Were the reasoning of Lamb's Chapel to apply to funding decisions
as well as to those involving access to facilities, it is urged,
its holding "would become a judicial juggernaut,
constitutionalizing the ubiquitous content-based decisions that
schools, colleges, and other government entities routinely make in
the allocation of public funds." Brief for Respondents 16.
To this end the University relies on our assurance in Widmar v.
Vincent, supra. There, in the course of striking down a public
university's exclusion of religious groups from use of school
facilities made available to all other student groups, we stated:
"Nor do we question the right of the University to make academic
judgments as to how best to allocate scarce resources." 454 U.S.,
at 276. The quoted language in Widmar was but a proper recognition
of the principle that when the State is the speaker, it may make
content-based choices. When the University determines the content
of the education it provides, it is the University speaking, and
we have permitted the government to regulate the content of what
is or is not expressed when it is the speaker or when it enlists
private entities to convey its own message. In the same vein, in
Rust v. Sullivan, supra, we upheld the government's prohibition on
abortion-related advice applicable to recipients of federal funds
for family planning counseling. There, the government did not
create a program to encourage private speech but instead used
private speakers to transmit specific information pertaining to
its own program. We recognized that when the government
appropriates public funds to promote a particular policy of its
own it is entitled to say what it wishes. 500 U.S., at 194. When
the government disburses public funds to private entities to
convey a governmental message, it may take legitimate and
appropriate steps to ensure that its message is neither garbled
nor distorted by the grantee. See id., at 196-200.
It does not follow, however, and we did not suggest in Widmar,
that viewpoint-based restrictions are proper when the University
does not itself speak or subsidize transmittal of a message it
favors but instead expends funds to encourage a diversity of views
from private speakers. A holding that the University may not
discriminate based on the viewpoint of private persons whose
speech it facilitates does not restrict the University's own
speech, which is controlled by different principles. See, e.g.,
Board of Ed. of Westside Community Schools (Dist. 66) v. Mergens,
496 U.S. 226, 250 (1990); Hazelwood School Dist. v. Kuhlmeier, 484
U.S. 260, 270-272 (1988). For that reason, the University's
reliance on Regan v. Taxation with Representation of Wash., supra,
is inapposite as well. Regan involved a challenge to Congress'
choice to grant tax deductions for contributions made to veterans'
groups engaged in lobbying, while denying that favorable status to
other charities which pursued lobbying efforts. Although
acknowledging that the Government is not required to subsidize the
exercise of fundamental rights, see 461 U.S., at 545-546, we
reaffirmed the requirement of viewpoint neutrality in the
Government's provision of financial benefits by observing that
"[t]he case would be different if Congress were to discriminate
invidiously in its subsidies in such a way as to 'ai[m] at the
suppression of dangerous ideas,'" see id., at 548 (quoting
Cammarano v. United States, 358 U.S. 498, 513 (1959), in turn
quoting Speiser v. Randall, 357 U.S. 513, 519 (1958). Regan relied
on a distinction based on preferential treatment of certain
speakers-veterans organizations-and not a distinction based on the
content or messages of those groups' speech. 461 U.S., at 548; cf.
Perry Ed. Assn., 460 U.S., at 49. The University's regulation now
before us, however, has a speech-based restriction as its sole
rationale and operative principle.
The distinction between the University's own favored message and
the private speech of students is evident in the case before us.
The University itself has taken steps to ensure the distinction in
the agreement each CIO must sign. See supra, at 2. The University
declares that the student groups eligible for SAF support are not
the University's agents, are not subject to its control, and are
not its responsibility. Having offered to pay the third-party
contractors on behalf of private speakers who convey their own
messages, the University may not silence the expression of
selected viewpoints.
The University urges that, from a constitutional standpoint,
funding of speech differs from provision of access to facilities
because money is scarce and physical facilities are not. Beyond
the fact that in any given case this proposition might not be true
as an empirical matter, the underlying premise that the University
could discriminate based on viewpoint if demand for space exceeded
its availability is wrong as well. The government cannot justify
viewpoint discrimination among private speakers on the economic
fact of scarcity. Had the meeting rooms in Lamb's Chapel been
scarce, had the demand been greater than the supply, our decision
would have been no different. It would have been incumbent on the
State, of course, to ration or allocate the scarce resources on
some acceptable neutral principle; but nothing in our decision
indicated that scarcity would give the State the right to exercise
viewpoint discrimination that is otherwise impermissible.
Vital First Amendment speech principles are at stake here. The
first danger to liberty lies in granting the State the power to
examine publications to determine whether or not they are based on
some ultimate idea and if so for the State to classify them. The
second, and corollary, danger is to speech from the chilling of
individual thought and expression. That danger is especially real
in the University setting, where the State acts against a
background and tradition of thought and experiment that is at the
center of our intellectual and philosophic tradition. See Healy v.
James, 408 U.S. 169, 180-181 (1972); Keyishian v. Board of
Regents, State Univ. of N. Y., 385 U.S. 589, 603 (1967); Sweezy v.
New Hampshire, 354 U.S. 234, 250 (1957). In ancient Athens, and,
as Europe entered into a new period of intellectual awakening, in
places like Bologna, Oxford, and Paris, universities began as
voluntary and spontaneous assemblages or concourses for students
to speak and to write and to learn. See generally R. Palmer & J.
Colton, A History of the Modern World 39 (7th ed. 1992). The
quality and creative power of student intellectual life to this
day remains a vital measure of a school's influence and
attainment. For the University, by regulation, to cast disapproval
on particular viewpoints of its students risks the suppression of
free speech and creative inquiry in one of the vital centers for
the nation's intellectual life, its college and university
campuses.
The Guideline invoked by the University to deny third-party
contractor payments on behalf of WAP ef-fects a sweeping
restriction on student thought and student inquiry in the context
of University sponsored publications. The prohibition on funding
on behalf of publications that "primarily promot[e] or manifes[t]
a particular belie[f] in or about a deity or an ultimate reality,"
in its ordinary and commonsense meaning, has a vast potential
reach. The term "promotes" as used here would comprehend any
writing advocating a philosophic position that rests upon a belief
in a deity or ultimate reality. See Webster's Third New
International Dictionary 1815 (1961) (defining "promote" as "to
contribute to the growth, enlargement, or prosperity of: further,
encourage"). And the term "manifests" would bring within the scope
of the prohibition any writing that is explicable as resting upon
a premise which presupposes the existence of a deity or ultimate
reality. See id., at 1375 (defining "manifest" as "to show
plainly: make palpably evident or certain by showing or
displaying"). Were the prohibition applied with much vigor at all,
it would bar funding of essays by hypothetical student
contributors named Plato, Spinoza, and Descartes. And if the
regulation covers, as the University says it does, see Tr. of Oral
Arg. 18-19, those student journalistic efforts which primarily
manifest or promote a belief that there is no deity and no
ultimate reality, then undergraduates named Karl Marx, Bertrand
Russell, and Jean-Paul Sartre would likewise have some of their
major essays excluded from student publications. If any
manifestation of beliefs in first principles disqualifies the
writing, as seems to be the case, it is indeed difficult to name
renowned thinkers whose writings would be accepted, save perhaps
for articles disclaiming all connection to their ultimate
philosophy. Plato could contrive perhaps to submit an acceptable
essay on making pasta or peanut butter cookies, provided he did
not point out their (necessary) imperfections.
Based on the principles we have discussed, we hold that the
regulation invoked to deny SAF support, both in its terms and in
its application to these petitioners, is a denial of their right
of free speech guaranteed by the First Amendment. It remains to be
considered whether the violation following from the University's
action is excused by the necessity of complying with the
Constitution's prohibition against state establishment of
religion. We turn to that question.
III
Before its brief on the merits in this Court, the University had
argued at all stages of the litigation that inclusion of WAP's
contractors in SAF funding authorization would violate the
Establishment Clause. Indeed, that is the ground on which the
University prevailed in the Court of Appeals. We granted
certiorari on this question: "Whether the Establishment Clause
compels a state university to exclude an otherwise eligible
student publication from participation in the student activities
fund, solely on the basis of its religious viewpoint, where such
exclusion would violate the Speech and Press Clauses if the
viewpoint of the publication were nonreligious." Pet. for Cert. i.
The University now seems to have abandoned this position,
contending that "[t]he fundamental objection to petitioners'
argument is not that it implicates the Establishment Clause but
that it would defeat the ability of public education at all levels
to control the use of public funds." Brief for Respondents 29; see
id., at 27-29, and n. 17; Tr. of Oral Arg. 14. That the University
itself no longer presses the Establishment Clause claim is some
indication that it lacks force; but as the Court of Appeals rested
its judgment on the point and our dissenting colleagues would find
it determinative, it must be addressed.
The Court of Appeals ruled that withholding SAF support from Wide
Awake contravened the Speech Clause of the First Amendment, but
proceeded to hold that the University's action was justified by
the necessity of avoiding a violation of the Establishment Clause,
an interest it found compelling. 18 F.3d, at 281. Recognizing that
this Court has regularly "sanctioned awards of direct nonmonetary
benefits to religious groups where the government has created open
fora to which all similarly situated organizations are invited,"
18 F.3d, at 286 (citing Widmar, 454 U.S., at 277), the Fourth
Circuit asserted that direct monetary subsidization of religious
organizations and projects is "a beast of an entirely different
color," 18 F.3d, at 286. The court declared that the Establishment
Clause would not permit the use of public funds to support "'a
specifically religious activity in an otherwise substantially
secular setting.'" Id., at 285 (quoting Hunt v. McNair, 413 U.S.
734, 743 (1973) (emphasis deleted)). It reasoned that because Wide
Awake is "a journal pervasively devoted to the discussion and
advancement of an avowedly Christian theological and personal
philosophy," the University's provision of SAF funds for its
publication would "send an unmistakably clear signal that the
University of Virginia supports Christian values and wishes to
promote the wide promulgation of such values." 18 F.3d, at 286.
If there is to be assurance that the Establishment Clause retains
its force in guarding against those governmental actions it was
intended to prohibit, we must in each case inquire first into the
purpose and object of the governmental action in question and then
into the practical details of the program's operation. Before
turning to these matters, however, we can set forth certain
general principles that must bear upon our determination.
A central lesson of our decisions is that a significant factor in
upholding governmental programs in the face of Establishment
Clause attack is their neutrality towards religion. We have
decided a series of cases addressing the receipt of government
benefits where religion or religious views are implicated in some
degree. The first case in our modern Establishment Clause
jurisprudence was Everson v. Board of Ed. of Ewing, 330 U.S. 1
(1947). There we cautioned that in enforcing the prohibition
against laws respecting establishment of religion, we must "be
sure that we do not inadvertently prohibit [the government] from
extending its general state law benefits to all its citizens
without regard to their religious belief." Id., at 16. We have
held that the guarantee of neutrality is respected, not offended,
when the government, following neutral criteria and evenhanded
policies, extends benefits to recipients whose ideologies and
viewpoints, including religious ones, are broad and diverse. See
Board of Ed. of Kiryas Joel Village School Dist. v. Grumet, 512
U.S. __, __ (1994) (slip op., at 16) (Souter, J.) ("[T]he
principle is well grounded in our case law [and] we have
frequently relied explicitly on the general availability of any
benefit provided religious groups or individuals in turning aside
Establishment Clause challenges"); Witters v. Washington Dept. of
Services for Blind, 474 U.S. 481, 487-488 (1986); Mueller v.
Allen, 463 U.S. 388, 398-399 (1983); Widmar, 454 U.S., at 274-275.
More than once have we rejected the position that the
Establishment Clause even justifies, much less requires, a refusal
to extend free speech rights to religious speakers who participate
in broad-reaching government programs neutral in design. See
Lamb's Chapel, 508 U.S., at __; Mergens, 496 U.S., at 248, 252;
Widmar, supra, at 274-275.
The governmental program here is neutral toward religion. There is
no suggestion that the University created it to advance religion
or adopted some ingenious device with the purpose of aiding a
religious cause. The object of the SAF is to open a forum for
speech and to support various student enterprises, including the
publication of newspapers, in recognition of the diversity and
creativity of student life. The University's SAF Guidelines have a
separate classification for, and do not make third-party payments
on behalf of, "religious organizations," which are those "whose
purpose is to practice a devotion to an acknowledged ultimate
reality or deity." Pet. for Cert. 66a. The category of support
here is for "student news, information, opinion, entertainment, or
academic communications media groups," of which Wide Awake was 1
of 15 in the 1990 school year. WAP did not seek a subsidy because
of its Christian editorial viewpoint; it sought funding as a
student journal, which it was.
The neutrality of the program distinguishes the student fees from
a tax levied for the direct support of a church or group of
churches. A tax of that sort, of course, would run contrary to
Establishment Clause concerns dating from the earliest days of the
Republic. The apprehensions of our predecessors involved the
levying of taxes upon the public for the sole and exclusive
purpose of establishing and supporting specific sects. The
exaction here, by contrast, is a student activity fee designed to
reflect the reality that student life in its many dimensions
includes the necessity of wide-ranging speech and inquiry and that
student expression is an integral part of the University's
educational mission. The fee is mandatory, and we do not have
before us the question whether an objecting student has the First
Amendment right to demand a pro rata return to the extent the fee
is expended for speech to which he or she does not subscribe. See
Keller v. State Bar of California, 496 U.S. 1, 15-16 (1990); Abood
v. Detroit Board of Ed., 431 U.S. 209, 235-236 (1977). We must
treat it, then, as an exaction upon the students. But the $14 paid
each semester by the students is not a general tax designed to
raise revenue for the University. See United States v. Butler, 297
U.S. 1, 61 (1936) ("A tax, in the general understanding of the
term, and as used in the Constitution, signifies an exaction for
the support of the Government"); see also Head Money Cases, 112
U.S. 580, 595-596 (1884). The SAF cannot be used for unlimited
purposes, much less the illegitimate purpose of supporting one
religion. Much like the arrangement in Widmar, the money goes to a
special fund from which any group of students with CIO status can
draw for purposes consistent with the University's educational
mission; and to the extent the student is interested in speech,
withdrawal is permitted to cover the whole spectrum of speech,
whether it manifests a religious view, an antireligious view, or
neither. Our decision, then, cannot be read as addressing an
expenditure from a general tax fund. Here, the disbursements from
the fund go to private contractors for the cost of printing that
which is protected under the Speech Clause of the First Amendment.
This is a far cry from a general public assessment designed and
effected to provide financial support for a church.
Government neutrality is apparent in the State's overall scheme in
a further meaningful respect. The program respects the critical
difference "between government speech endorsing religion, which
the Establishment Clause forbids, and private speech endorsing
religion, which the Free Speech and Free Exercise Clauses
protect." Mergens, supra, at 250 (opinion of O'Connor, J.). In
this case, "the government has not willfully fostered or
encouraged" any mistaken impression that the student newspapers
speak for the University. Capitol Square Review and Advisory Bd.
v. Pinette, ante, at __ (slip op., at 10). The University has
taken pains to disassociate itself from the private speech
involved in this case. The Court of Appeals' apparent concern that
Wide Awake's religious orientation would be attributed to the
University is not a plausible fear, and there is no real
likelihood that the speech in question is being either endorsed or
coerced by the State, see Lee v. Weisman, 505 U.S. 577, ___
(1992); Witters, supra, at 489 (citing Lynch v. Donnelly, 465 U.S.
668, 688 (1984) (O'Connor, J., concurring)); see also Witters,
supra, at 493 (O'Connor, J., concurring in part and concurring in
judgment) (citing Lynch, supra, at 690 (O'Connor, J.,
concurring)).
The Court of Appeals (and the dissent) are correct to extract from
our decisions the principle that we have recognized special
Establishment Clause dangers where the government makes direct
money payments to sectarian institutions, citing Roemer v. Board
of Pub. Works of Md., 426 U.S. 736, 747 (1976); Bowen v. Kendrick,
487 U.S. 589, 614-615 (1988); Hunt v. McNair, 413 U.S., at 742;
Tilton, 403 U.S., at 679-680; Board of Ed. of Central School Dist.
No. 1 v. Allen, 392 U.S. 236 (1968). The error is not in
identifying the principle but in believing that it controls this
case. Even assuming that WAP is no different from a church and
that its speech is the same as the religious exercises conducted
in Widmar (two points much in doubt), the Court of Appeals decided
a case that was, in essence, not before it, and the dissent would
have us do the same. We do not confront a case where, even under a
neutral program that includes nonsectarian recipients, the
government is making direct money payments to an institution or
group that is engaged in religious activity. Neither the Court of
Appeals nor the dissent, we believe, takes sufficient cognizance
of the undisputed fact that no public funds flow directly to WAP's
coffers.
It does not violate the Establishment Clause for a public
university to grant access to its facilities on a religion-neutral
basis to a wide spectrum of student groups, including groups which
use meeting rooms for sectarian activities, accompanied by some
devotional exercises. See Widmar, 454 U.S., at 269; Mergens, 496
U.S., at 252. This is so even where the upkeep, maintenance, and
repair of the facilities attributed to those uses is paid from a
student activities fund to which students are required to
contribute. Widmar, supra, at 265. The government usually acts by
spending money. Even the provision of a meeting room, as in
Mergens and Widmar, involved governmental expenditure, if only in
the form of electricity and heating or cooling costs. The error
made by the Court of Appeals, as well as by the dissent, lies in
focusing on the money that is undoubtedly expended by the
government, rather than on the nature of the benefit received by
the recipient. If the expenditure of governmental funds is
prohibited whenever those funds pay for a service that is,
pursuant to a religion-neutral program, used by a group for
sectarian purposes, then Widmar, Mergens, and Lamb's Chapel would
have to be overruled. Given our holdings in these cases, it
follows that a public university may maintain its own computer
facility and give student groups access to that facility,
including the use of the printers, on a religion neutral, say
first-come-first-served, basis. If a religious student
organization obtained access on that religion-neutral basis and
used a computer to compose or a printer or copy machine to print
speech with a religious content or viewpoint, the State's action
in providing the group with access would no more violate the
Establishment Clause than would giving those groups access to an
assembly hall. See Lamb's Chapel v. Center Moriches School Dist.,
508 U.S. __ (1993); Widmar, supra; Mergens, supra. There is no
difference in logic or principle, and no difference of
constitutional significance, between a school using its funds to
operate a facility to which students have access, and a school
paying a third-party contractor to operate the facility on its
behalf. The latter occurs here. The University provides printing
services to a broad spectrum of student newspapers qualified as
CIOs by reason of their officers and membership. Any benefit to
religion is incidental to the government's provision of secular
services for secular purposes on a religion-neutral basis.
Printing is a routine, secular, and recurring attribute of student
life.
By paying outside printers, the University in fact attains a
further degree of separation from the student publication, for it
avoids the duties of supervision, escapes the costs of upkeep,
repair, and replacement attributable to student use, and has a
clear record of costs. As a result, and as in Widmar, the
University can charge the SAF, and not the taxpayers as a whole,
for the discrete activity in question. It would be formalistic for
us to say that the University must forfeit these advantages and
provide the services itself in order to comply with the
Establishment Clause. It is, of course, true that if the State
pays a church's bills it is subsidizing it, and we must guard
against this abuse. That is not a danger here, based on the
considerations we have advanced and for the additional reason that
the student publication is not a religious institution, at least
in the usual sense of that term as used in our case law, and it is
not a religious organization as used in the University's own
regulations. It is instead a publication involved in a pure forum
for the expression of ideas, ideas that would be both incomplete
and chilled were the Constitution to be interpreted to require
that state officials and courts scan the publication to ferret out
views that principally manifest a belief in a divine being.
Were the dissent's view to become law, it would require the
University, in order to avoid a constitutional violation, to
scrutinize the content of student speech, lest the expression in
question-speech otherwise protected by the Constitution-contain
too great a religious content. The dissent, in fact, anticipates
such censorship as "crucial" in distinguishing between "works
characterized by the evangelism of Wide Awake and writing that
merely happens to express views that a given religion might
approve." Post, at 36. That eventuality raises the specter of
governmental censorship, to ensure that all student writings and
publications meet some baseline standard of secular orthodoxy. To
impose that standard on student speech at a university is to
imperil the very sources of free speech and expression. As we
recognized in Widmar, official censorship would be far more
inconsistent with the Establishment Clause's dictates than would
governmental provision of secular printing services on a
religion-blind basis.
"[T]he dissent fails to establish that the distinction [between
'religious' speech and speech 'about' religion] has intelligible
content. There is no indication when 'singing hymns, reading
scripture, and teaching biblical principles' cease to be 'singing,
teaching, and reading'-all apparently forms of 'speech,' despite
their religious subject matter-and become unprotected 'worship.' .
"[E]ven if the distinction drew an arguably principled line, it is
highly doubtful that it would lie within the judicial competence
to administer. Merely to draw the distinction would require the
university-and ultimately the courts-to inquire into the
significance of words and practices to different religious faiths,
and in varying circumstances by the same faith. Such inquiries
would tend inevitably to entangle the State with religion in a
manner forbidden by our cases. E.g., Walz [v. Tax Comm'n of New
York City, 397 U.S. 664 (1970)]." 454 U.S., at 269-270, n. 6
(citations omitted).
* * *
To obey the Establishment Clause, it was not necessary for the
University to deny eligibility to student publications because of
their viewpoint. The neutrality commanded of the State by the
separate Clauses of the First Amendment was compromised by the
University's course of action. The viewpoint discrimination
inherent in the University's regulation required public officials
to scan and interpret student publications to discern their
underlying philosophic assumptions respecting religious theory and
belief. That course of action was a denial of the right of free
speech and would risk fostering a pervasive bias or hostility to
religion, which could undermine the very neutrality the
Establishment Clause requires. There is no Establishment Clause
violation in the University's honoring its duties under the Free
Speech Clause.
The judgment of the Court of Appeals must be, and is, reversed.
It is so ordered.
JUSTICE O'CONNOR, concurring.
"We have time and again held that the government generally may not
treat people differently based on the God or gods they worship, or
don't worship." Board of Ed. of Kiryas Joel Village School Dist.
v. Grumet, 512 U.S. ___, ___ (1994) (slip op., at 4) (O'Connor,
J., concurring in part and concurring in judgment). This
insistence on government neutrality toward religion explains why
we have held that schools may not discriminate against religious
groups by denying them equal access to facilities that the schools
make available to all. See Lamb's Chapel v. Center Moriches Union
Free School Dist., 508 U.S. ___ (1993); Widmar v. Vincent, 454
U.S. 263 (1981). Withholding access would leave an impermissible
perception that religious activities are disfavored: "the message
is one of neutrality rather than endorsement; if a State refused
to let religious groups use facilities open to others, then it
would demonstrate not neutrality but hostility toward religion."
Board of Ed. of Westside Community Schools (Dist. 66) v. Mergens,
496 U.S. 226, 248 (1990) (plurality opinion). "The Religion
Clauses prohibit the government from favoring religion, but they
provide no warrant for discriminating against religion." Kiryas
Joel, supra, at ___ (slip op., at 7) (O'Connor, J.). Neutrality,
in both form and effect, is one hallmark of the Establishment
Clause.
As Justice Souter demonstrates, however, post, at 6-10, there
exists another axiom in the history and precedent of the
Establishment Clause. "Public funds may not be used to endorse the
religious message." Bowen v. Kendrick, 487 U.S. 589, 642 (1988)
(Blackmun, J., dissenting); see also id., at 622 (O'Connor, J.,
concurring). Our cases have permitted some government funding of
secular functions performed by sectarian organizations. See, e.
g., id., at 617 (funding for sex education); Roemer v. Board of
Pub. Works of Md., 426 U.S. 736, 741 (1976) (cash grant to
colleges not to be used for "sectarian purposes"); Bradfield v.
Roberts, 175 U.S. 291, 299-300 (1899) (funding of health care for
indigent patients). These decisions, however, provide no precedent
for the use of public funds to finance religious activities.
This case lies at the intersection of the principle of government
neutrality and the prohibition on state funding of religious
activities. It is clear that the University has established a
generally applicable program to encourage the free exchange of
ideas by its students, an expressive marketplace that includes
some 15 student publications with predictably divergent
viewpoints. It is equally clear that petitioners' viewpoint is
religious and that publication of Wide Awake is a religious
activity, under both the University's regulation and a fair
reading of our precedents. Not to finance Wide Awake, according to
petitioners, violates the principle of neutrality by sending a
message of hostility toward religion. To finance Wide Awake,
argues the University, violates the prohibition on direct state
funding of religious activities.
When two bedrock principles so conflict, understandably neither
can provide the definitive answer. Reliance on categorical
platitudes is unavailing. Resolution instead depends on the hard
task of judging-sifting through the details and determining
whether the challenged program offends the Establishment Clause.
Such judgment requires courts to draw lines, sometimes quite fine,
based on the particular facts of each case. See Lee v. Weisman,
505 U.S. 577, 598 (1992) ("Our jurisprudence in this area is of
necessity one of line-drawing"). As Justice Holmes observed in a
different context: "Neither are we troubled by the question where
to draw the line. That is the question in pretty much everything
worth arguing in the law. Day and night, youth and age are only
types." Irwin v. Gavit, 268 U.S. 161, 168 (1925) (citation
omitted).
In Witters v. Washington Dept. of Services for Blind, 474 U.S. 481
(1986), for example, we unanimously held that the State may,
through a generally applicable financial aid program, pay a blind
student's tuition at a sectarian theological institution. The
Court so held, however, only after emphasizing that "vocational
assistance provided under the Washington program is paid directly
to the student, who transmits it to the educational institution of
his or her choice." Id., at 487. The benefit to religion under the
program, therefore, is akin to a public servant contributing her
government paycheck to the church. Ibid. We thus resolved the
conflict between the neutrality principle and the funding
prohibition, not by permitting one to trump the other, but by
relying on the elements of choice peculiar to the facts of that
case: "The aid to religion at issue here is the result of
petitioner's private choice. No reasonable observer is likely to
draw from the facts before us an inference that the State itself
is endorsing a religious practice or belief." Id., at 493
(O'Connor, J., concurring in part and concurring in judgment). See
also Zobrest v. Catalina Foothills School Dist., 509 U.S. 1, ___
(1993) (slip op., at 7-8).
The need for careful judgment and fine distinctions presents
itself even in extreme cases. Everson v. Board of Ed. of Ewing,
330 U.S. 1 (1947), provided perhaps the strongest exposition of
the no-funding principle: "No tax in any amount, large or small,
can be levied to support any religious activities or institutions,
whatever they may be called, or whatever form they may adopt to
teach or practice religion." Id., at 16. Yet the Court approved
the use of public funds, in a general program, to reimburse
parents for their children's bus fares to attend Catholic schools.
Id., at 17-18. Although some would cynically dismiss the Court's
disposition as inconsistent with its protestations, see id., at 19
(Jackson, J., dissenting) ("the most fitting precedent is that of
Julia who, according to Byron's reports, 'whispering "I will ne'er
consent,"-consented'"), the decision reflected the need to rely on
careful judgment-not simple categories-when two principles, of
equal historical and jurisprudential pedigree, come into
unavoidable conflict.
So it is in this case. The nature of the dispute does not admit of
categorical answers, nor should any be inferred from the Court's
decision today, see ante, at 18. Instead, certain considerations
specific to the program at issue lead me to conclude that by
providing the same assistance to Wide Awake that it does to other
publications, the University would not be endorsing the magazine's
religious perspective.
First, the student organizations, at the University's insistence,
remain strictly independent of the University. The University's
agreement with the Contracted Independent Organizations (CIO)-i.
e., student groups-provides:
"The University is a Virginia public corporation and the CIO is
not part of that corporation, but rather exists and operates
independently of the University. . . . The parties understand and
agree that this Agreement is the only source of any control the
University may have over the CIO or its activities . . . ." App.
27.
And the agreement requires that student organizations include in
every letter, contract, publication, or other written materials
the following disclaimer:
"Although this organization has members who are University of
Virginia students (faculty) (employees), the organization is
independent of the corporation which is the University and which
is not responsible for the organization's contracts, acts or
omissions." Id., at 28.
Any reader of Wide Awake would be on notice of the publication's
independence from the University. Cf. Widmar v. Vincent, 454 U.S.,
at 274, n. 14.
Second, financial assistance is distributed in a manner that
ensures its use only for permissible purposes. A student
organization seeking assistance must submit disbursement requests;
if approved, the funds are paid directly to the third-party vendor
and do not pass through the organization's coffers. This safeguard
accompanying the University's financial assistance, when provided
to a publication with a religious viewpoint such as Wide Awake,
ensures that the funds are used only to further the University's
purpose in maintaining a free and robust marketplace of ideas,
from whatever perspective. This feature also makes this case
analogous to a school providing equal access to a generally
available printing press (or other physical facilities), ante, at
23, and unlike a block grant to religious organizations.
Third, assistance is provided to the religious publication in a
context that makes improbable any perception of government
endorsement of the religious message. Wide Awake does not exist in
a vacuum. It competes with 15 other magazines and newspapers for
advertising and readership. The widely divergent viewpoints of
these many purveyors of opinion, all supported on an equal basis
by the University, significantly diminishes the danger that the
message of any one publication is perceived as endorsed by the
University. Besides the general news publications, for example,
the University has provided support to The Yellow Journal, a humor
magazine that has targeted Christianity as a subject of satire,
and Al-Salam, a publication to "promote a better understanding of
Islam to the University Community," App. 92. Given this wide array
of non-religious, anti-religious and competing religious
viewpoints in the forum supported by the University, any
perception that the University endorses one particular viewpoint
would be illogical. This is not the harder case where religious
speech threatens to dominate the forum. Cf. Capitol Square Review
and Advisory Bd. v. Pinette, ante, at ___ (O'Connor, J.,
concurring in part and concurring in judgment); Mergens, 496 U.S.,
at 275.
Finally, 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. See, e. g.,
Keller v. State Bar of California, 496 U.S. 1, 15 (1990); Abood v.
Detroit Board of Education, 431 U.S. 209, 236 (1977). There
currently exists a split in the lower courts as to whether such a
challenge would be successful. Compare Hays County Guardian v.
Supple, 969 F.2d 111, 123 (CA5 1992), cert. denied 506 U.S. ___
(1993); Kania v. Fordham, 702 F.2d 475, 480 (CA4 1983); Good v.
Associated Students of Univ. of Wash., 86 Wash. 2d 94, 105-106,
542 P. 2d 762, 769 (1975) (en banc), with Smith v. Regents of
Univ. of Cal., 4 Cal. 4th 843, 863-864, 844 P. 2d 500, 513-514,
cert. denied, 510 U.S. ___ (1993). While the Court does not
resolve the question here, see ante, at 20, the existence of such
an opt-out possibility not available to citizens generally, see
Abood, supra, at 259, n. 13 (Powell, J., concurring in judgment),
provides a potential basis for distinguishing proceeds of the
student fees in this case from proceeds of the general assessments
in support of religion that lie at the core of the prohibition
against religious funding, see ante, at 19-20; post, at 1-3
(Thomas, J., concurring); post, at 6-10 (Souter, J., dissenting),
and from government funds generally. Unlike monies dispensed from
state or federal treasuries, the Student Activities Fund is
collected from students who themselves administer the fund and
select qualifying recipients only from among those who originally
paid the fee. The government neither pays into nor draws from this
common pool, and a fee of this sort appears conducive to granting
individual students proportional refunds. The Student Activities
Fund, then, represents not government resources, whether derived
from tax revenue, sales of assets, or otherwise, but a fund that
simply belongs to the students.
The Court's decision today therefore neither trumpets the
supremacy of the neutrality principle nor signals the demise of
the funding prohibition in Establishment Clause jurisprudence. As
I observed last Term, "[e]xperience proves that the Establishment
Clause, like the Free Speech Clause, cannot easily be reduced to a
single test." Kiryas Joel, 512 U.S., at ___ (slip op., at 10)
(O'Connor, J., concurring in part and concurring in judgment).
When bedrock principles collide, they test the limits of
categorical obstinacy and expose the flaws and dangers of a Grand
Unified Theory that may turn out to be neither grand nor unified.
The Court today does only what courts must do in many
Establishment Clause cases-focus on specific features of a
particular government action to ensure that it does not violate
the Constitution. By withholding from Wide Awake assistance that
the University provides generally to all other student
publications, the University has discriminated on the basis of the
magazine's religious viewpoint in violation of the Free Speech
Clause. And particular features of the University's program-such
as the explicit disclaimer, the disbursement of funds directly to
third-party vendors, the vigorous nature of the forum at issue,
and the possibility for objecting students to opt out-convince me
that providing such assistance in this case would not carry the
danger of impermissible use of public funds to endorse Wide
Awake's religious message.
Subject to these comments, I join the opinion of the Court.
JUSTICE THOMAS, concurring.
I agree with the Court's opinion and join it in full, but I write
separately to express my disagreement with the historical analysis
put forward by the dissent. Although the dissent starts down the
right path in consulting the original meaning of the Establishment
Clause, its misleading application of history yields a principle
that is inconsistent with our Nation's long tradition of allowing
religious adherents to participate on equal terms in neutral
government programs.
Even assuming that the Virginia debate on the so-called
"Assessment Controversy" was indicative of the principles embodied
in the Establishment Clause, this incident hardly compels the
dissent's conclusion that government must actively discriminate
against religion. The dissent's historical discussion glosses over
the fundamental characteristic of the Virginia assessment bill
that sparked the controversy: The assessment was to be imposed for
the support of clergy in the performance of their function of
teaching religion. Thus, the "Bill Establishing a Provision for
Teachers of the Christian Religion" provided for the collection of
a specific tax, the proceeds of which were to be appropriated "by
the Vestries, Elders, or Directors of each religious society . . .
to a provision for a Minister or Teacher of the Gospel of their
denomination, or the providing places of divine worship, and to
none other use whatsoever." See Everson v. Board of Ed. of Ewing,
330 U.S. 1, 74 (1947) (appendix to dissent of Rutledge,
J.).[FOOTNOTE 1]
James Madison's Memorial and Remonstrance Against Religious
Assessments (hereinafter Madison's Remonstrance) must be
understood in this context. Contrary to the dissent's suggestion,
Madison's objection to the assessment bill did not rest on the
premise that religious entities may never participate on equal
terms in neutral government programs. Nor did Madison embrace the
argument that forms the linchpin of the dissent: that monetary
subsidies are constitutionally different from other neutral
benefits programs. Instead, Madison's comments are more consistent
with the neutrality principle that the dissent inexplicably
discards. According to Madison, the Virginia assessment was flawed
because it "violate[d] that equality which ought to be the basis
of every law." Madison's Remonstrance 4, reprinted in Everson,
supra, at 66 (appendix to dissent of Rutledge, J.). The assessment
violated the "equality" principle not because it allowed religious
groups to participate in a generally available government program,
but because the bill singled out religious entities for special
benefits. See ibid. (arguing that the assessment violated the
equality principle "by subjecting some to peculiar burdens" and
"by granting to others peculiar exemptions").
Legal commentators have disagreed about the historical lesson to
take from the Assessment Controversy. For some, the experience in
Virginia is consistent with the view that the Framers saw the
Establishment Clause simply as a prohibition on governmental
preferences for some religious faiths over others. See R. Cord,
Separation of Church and State: Historical Fact and Current
Fiction 20-23 (1982); Smith, Getting Off on the Wrong Foot and
Back on Again: A Reexamination of the History of the Framing of
the Religion Clauses of the First Amendment and a Critique of the
Reynolds and Everson Decisions, 20 Wake Forest L. Rev. 569,
590-591 (1984). Other commentators have rejected this view,
concluding that the Establishment Clause forbids not only
government preferences for some religious sects over others, but
also government preferences for religion over irreligion. See,
e.g., Laycock, "Nonpreferential" Aid to Religion: A False Claim
About Original Intent, 27 Wm. & Mary L. Rev. 875, 875 (1986).
I find much to commend the former view. Madison's focus on the
preferential nature of the assessment was not restricted to the
fourth paragraph of the Remonstrance discussed above. The funding
provided by the Virginia assessment was to be extended only to
Christian sects, and the Remonstrance seized on this defect:
"Who does not see that the same authority which can establish
Christianity, in exclusion of all other Religions, may establish
with the same ease any particular sect of Christians, in exclusion
of all other Sects." Madison's Remonstrance 3, reprinted in
Everson, supra, at 65.
In addition to the third and fourth paragraphs of the
Remonstrance, "Madison's seventh, ninth, eleventh, and twelfth
arguments all speak, in some way, to the same intolerance,
bigotry, unenlightenment, and persecution that had generally
resulted from previous exclusive religious establishments." Cord,
supra, at 21. The conclusion that Madison saw the principle of
nonestablishment as barring governmental preferences for
particular religious faiths seems especially clear in light of
statements he made in the more-relevant context of the House
debates on the First Amendment. See Wallace v. Jaffree, 472 U.S.
38, 98 (1985) (Rehnquist, J., dissenting) (Madison's views "as
reflected by actions on the floor of the House in 1789, [indicate]
that he saw the [First] Amendment as designed to prohibit the
establishment of a national religion, and perhaps to prevent
discrimination among sects," but not "as requiring neutrality on
the part of government between religion and irreligion").
Moreover, even if more extreme notions of the separation of church
and state can be attributed to Madison, many of them clearly stem
from "arguments reflecting the concepts of natural law, natural
rights, and the social contract between government and a civil
society," Cord, supra, at 22, rather than the principle of
nonestablishment in the Constitution. In any event, the views of
one man do not establish the original understanding of the First
Amendment.
But resolution of this debate is not necessary to decide this
case. Under any understanding of the Assessment Controversy, the
history cited by the dissent cannot support the conclusion that
the Establishment Clause "categorically condemn[s] state programs
directly aiding religious activity" when that aid is part of a
neutral program available to a wide array of beneficiaries. Post,
at 13. Even if Madison believed that the principle of
nonestablishment of religion precluded government financial
support for religion per se (in the sense of government benefits
specifically targeting religion), there is no indication that at
the time of the framing he took the dissent's extreme view that
the government must discriminate against religious adherents by
excluding them from more generally available financial
subsidies.[FOOTNOTE 2]
In fact, Madison's own early legislative proposals cut against the
dissent's suggestion. In 1776, when Virginia's Revolutionary
Convention was drafting its Declaration of Rights, Madison
prepared an amendment that would have disestablished the Anglican
Church. This amendment (which went too far for the Convention and
was not adopted) is not nearly as sweeping as the dissent's
version of disestablishment; Madison merely wanted the Convention
to declare that "no man or class of men ought, on account of
religion[,] to be invested with peculiar emoluments or privileges
29-June 12, 1776), in 1 Papers of James Madison 174 (W. Hutchinson
& W. Rachal eds. 1962) (emphasis added). Likewise, Madison's
Remonstrance stressed that "just government" is "best supported by
protecting every citizen in the enjoyment of his Religion with the
same equal hand which protects his person and his property; by
neither invading the equal rights of any Sect, nor suffering any
Sect to invade those of another." Madison's Remonstrance 8,
reprinted in Everson, supra, at 68; cf. Terrett v. Taylor, 9
Cranch 43, 49 (1815) (holding that the Virginia constitution did
not prevent the government from "aiding the votaries of every sect
to . . . perform their own religious duties," or from
"establishing funds for the support of ministers, for public
charities, for the endowment of churches, or for the sepulture of
the dead").
Stripped of its flawed historical premise, the dissent's argument
is reduced to the claim that our Establishment Clause
jurisprudence permits neutrality in the context of access to
government facilities but requires discrimination in access to
government funds. The dissent purports to locate the prohibition
against "direct public funding" at the "heart" of the
Establishment Clause, see post, at 17, but this conclusion fails
to confront historical examples of funding that date back to the
time of the founding. To take but one famous example, both Houses
of the First Congress elected chaplains, see S. Jour., 1st Cong.,
1st Sess., 10 (1820 ed.); H. R. Jour., 1st Cong., 1st Sess., 26
(1826 ed.), and that Congress enacted legislation providing for an
annual salary of $500 to be paid out of the Treasury, see Act of
Sept. 22, 1789, ch. 17, 4, 1 Stat. 70, 71. Madison himself was a
member of the committee that recommended the chaplain system in
the House. See H. R. Jour., at 11-12; 1 Annals of Cong. 891
(1789); Cord, supra, at 25. This same system of "direct public
funding" of congressional chaplains has "continued without
interruption ever since that early session of Congress." Marsh v.
Chambers, 463 U.S. 783, 788 (1983).[FOOTNOTE 3]
The historical evidence of government support for religious
entities through property tax exemptions is also overwhelming. As
the dissent concedes, property tax exemptions for religious bodies
"have been in place for over 200 years without disruption to the
interests represented by the Establishment Clause." Post, at 20,
n. 7 (citing Walz v. Tax Comm'n of New York City, 397 U.S. 664,
676-680 (1970)).[FOOTNOTE 4] In my view, the dissent's acceptance
of this tradition puts to rest the notion that the Establishment
Clause bars monetary aid to religious groups even when the aid is
equally available to other groups. A tax exemption in many cases
is economically and functionally indistinguishable from a direct
monetary subsidy.[FOOTNOTE 5] In one instance, the government
relieves religious entities (along with others) of a generally
applicable tax; in the other, it relieves religious entities
(along with others) of some or all of the burden of that tax by
returning it in the form of a cash subsidy. Whether the benefit is
provided at the front or back end of the taxation process, the
financial aid to religious groups is undeniable. The analysis
under the Establishment Clause must also be the same: "Few
concepts are more deeply embedded in the fabric of our national
life, beginning with pre-Revolutionary colonial times, than for
the government to exercise at the very least this kind of
benevolent neutrality toward churches and religious exercise . . .
Consistent application of the dissent's "no-aid" principle would
require that "'a church could not be protected by the police and
fire departments, or have its public sidewalk kept in repair.'"
Zobrest v. Catalina Foothills School Dist., 509 U.S. ___, ___
(1993) (slip op., at 6) (quoting Widmar v. Vincent, 454 U.S. 263,
274-275 (1981)). The dissent admits that "evenhandedness may
become important to ensuring that religious interests are not
inhibited." Post, at 18, n. 5. Surely the dissent must concede,
however, that the same result should obtain whether the government
provides the populace with fire protection by reimbursing the
costs of smoke detectors and overhead sprinkler systems or by
establishing a public fire department. If churches may benefit on
equal terms with other groups in the latter program-that is, if a
public fire department may extinguish fires at churches-then they
may also benefit on equal terms in the former program.
Though our Establishment Clause jurisprudence is in hopeless
disarray, this case provides an opportunity to reaffirm one basic
principle that has enjoyed an uncharacteristic degree of
consensus: The Clause does not compel the exclusion of religious
groups from government benefits programs that are generally
available to a broad class of participants. See Lamb's Chapel v.
Center Moriches Union Free School Dist., 508 U.S. ___ (1993);
Zobrest, supra; Board of Ed. of Westside Community Schools (Dist.
66) v. Mergens, 496 U.S. 226 (1990); Texas Monthly, Inc. v.
Bullock, 489 U.S. 1 (1989); Witters v. Washington Dept. of
Services for Blind, 474 U.S. 481 (1986); Mueller v. Allen, 463
U.S. 388 (1983); Widmar, supra. Under the dissent's view, however,
the University of Virginia may provide neutral access to the
University's own printing press, but it may not provide the same
service when the press is owned by a third party. Not
surprisingly, the dissent offers no logical justification for this
conclusion, and none is evident in the text or original meaning of
the First Amendment.
If the Establishment Clause is offended when religious adherents
benefit from neutral programs such as the University of Virginia's
Student Activities Fund, it must also be offended when they
receive the same benefits in the form of in-kind subsidies. The
constitutional demands of the Establishment Clause may be judged
against either a baseline of "neutrality" or a baseline of "no aid
to religion," but the appropriate baseline surely cannot depend on
the fortuitous circumstances surrounding the form of aid. The
contrary rule would lead to absurd results that would jettison
centuries of practice respecting the right of religious adherents
to participate on neutral terms in a wide variety of
government-funded programs.
Our Nation's tradition of allowing religious adherents to
participate in evenhanded government programs is hardly limited to
the class of "essential public benefits" identified by the
dissent. See post, at 18, n. 5. A broader tradition can be traced
at least as far back as the First Congress, which ratified the
Northwest Ordinance of 1787. See Act of Aug. 7, 1789, ch. 8, 1
Stat. 50. Article III of that famous enactment of the
Confederation Congress had provided: "Religion, morality, and
knowledge . . . being necessary to good government and the
happiness of mankind, schools and the means of learning shall
forever be encouraged." Id., at 52, n. (a). Congress subsequently
set aside federal lands in the Northwest Territory and other
territories for the use of schools. See, e.g., Act of Mar. 3,
1803, ch. 21, 1, 2 Stat. 225-226; Act of Mar. 26, 1804, ch. 35,
5, 2 Stat. 279; Act of Feb. 15, 1811, ch. 14, 10, 2 Stat. 621;
Act of Apr. 18, 1818, ch. 67, 6, 3 Stat. 430; Act of Apr. 20,
1818, ch. 126, 2, 3 Stat. 467. Many of the schools that enjoyed
the benefits of these land grants undoubtedly were
church-affiliated sectarian institutions as there was no
requirement that the schools be "public." See C. Antieau, A.
Downey, & E. Roberts, Freedom From Federal Establishment,
Formation and Early History of the First Amendment Religion
Clauses 163 (1964). Nevertheless, early Congresses found no
problem with the provision of such neutral benefits. See also id.,
at 174 (noting that "almost universally[,] Americans from 1789 to
1825 accepted and practiced governmental aid to religion and
religiously oriented educational institutions").
Numerous other government benefits traditionally have been
available to religious adherents on neutral terms. Several
examples may be found in the work of early Congresses, including
copyright protection for "the author and authors of any map,
chart, book or books," Act of May 31, 1790, ch. 15, 1, 1 Stat.
124, 124, and a privilege allowing "every printer of newspapers
[to] send one paper to each and every other printer of newspapers
within the United States, free of postage," Act of Feb. 20, 1792,
ch. 7, 21, 1 Stat. 232, 238. Neither of these laws made any
exclusion for the numerous authors or printers who manifested a
belief in or about a deity. Thus, history provides an answer for
the constitutional question posed by this case, but it is not the
one given by the dissent. The dissent identifies no evidence that
the Framers intended to disable religious entities from
participating on neutral terms in evenhanded government programs.
The evidence that does exist points in the opposite direction and
provides ample support for today's decision.
JUSTICE SOUTER, with whom JUSTICE STEVENS, JUSTICE GINSBURG and
JUSTICE BREYER join, dissenting.
The Court today, for the first time, approves direct funding of
core religious activities by an arm of the State. It does so,
however, only after erroneous treatment of some familiar
principles of law implementing the First Amendment's Establishment
and Speech Clauses, and by viewing the very funds in question as
beyond the reach of the Establishment Clause's funding
restrictions as such. Because there is no warrant for
distinguishing among public funding sources for purposes of
applying the First Amendment's prohibition of religious
establishment, I would hold that the University's refusal to
support petitioners' religious activities is compelled by the
Establishment Clause. I would therefore affirm.
I
The central question in this case is whether a grant from the
Student Activities Fund to pay Wide Awake's printing expenses
would violate the Establishment Clause. Although the Court does
not dwell on the details of Wide Awake's message, it recognizes
something sufficiently religious in the publication to demand
Establishment Clause scrutiny. Although the Court places great
stress on the eligibility of secular as well as religious
activities for grants from the Student Activities Fund, it
recognizes that such evenhanded availability is not by itself
enough to satisfy constitutional requirements for any aid scheme
that results in a benefit to religion. Ante, at 18; see also ante,
at 1-3 (O'Connor, J., concurring). Something more is necessary to
justify any religious aid. Some members of the Court, at least,
may think the funding permissible on a view that it is indirect,
since the money goes to Wide Awake's printer, not through Wide
Awake's own checking account. The Court's principal reliance,
however, is on an argument that providing religion with
economically valuable services is permissible on the theory that
services are economically indistinguishable from religious access
to governmental speech forums, which sometimes is permissible. But
this reasoning would commit the Court to approving direct
religious aid beyond anything justifiable for the sake of access
to speaking forums. The Court implicitly recognizes this in its
further attempt to circumvent the clear bar to direct governmental
aid to religion. Different members of the Court seek to avoid this
bar in different ways. The opinion of the Court makes the novel
assumption that only direct aid financed with tax revenue is
barred, and draws the erroneous conclusion that the involuntary
Student Activities Fee is not a tax. I do not read Justice
O'Connor's opinion as sharing that assumption; she places this
Student Activities Fund in a category of student funding
enterprises from which religious activities in public universities
may benefit, so long as there is no consequent endorsement of
religion. The resulting decision is in unmistakable tension with
the accepted law that the Court continues to avow.
A
The Court's difficulties will be all the more clear after a closer
look at Wide Awake than the majority opinion affords. The
character of the magazine is candidly disclosed on the opening
page of the first issue, where the editor-in-chief announces Wide
Awake's mission in a letter to the readership signed, "Love in
Christ": it is "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."
App. 45. The masthead of every issue bears St. Paul's exhortation,
that "[t]he hour has come for you to awake from your slumber,
because our salvation is nearer now than when we first believed.
Romans 13:11."
Each issue of Wide Awake contained in the record makes good on the
editor's promise and echoes the Apostle's call to accept
salvation:
"The only way to salvation through Him is by confessing and
repenting of sin. It is the Christian's duty to make sinners aware
of their need for salvation. Thus, Christians must confront and
condemn sin, or else they fail in their duty of love." Mourad &
Prince, A Love/Hate Relationship, November/December 1990, p. 3.
"When you get to the final gate, the Lord will be handing out
boarding passes, and He will examine your ticket. If, in your
lifetime, you did not request a seat on His Friendly Skies Flyer
by trusting Him and asking Him to be your pilot, then you will not
be on His list of reserved seats (and the Lord will know you not).
You will not be able to buy a ticket then; no amount of money or
desire will do the trick. You will be met by your chosen pilot and
flown straight to Hell on an express jet (without air conditioning
or toilets, of course)." Ace, The Plane Truth, id., at 3.
"'Go into all the world and preach the good news to all creation.'
(Mark 16:15) The Great Commission is the prime-directive for our
lives as Christians . . . ." Liu, Christianity and the Five-legged
Stool, September/October 1991, p. 3.
"The Spirit provides access to an intimate relationship with the
Lord of the Universe, awakens our minds to comprehend spiritual
truth and empowers us to serve as effective ambassadors for the
Lord Jesus in our earthly lives." Buterbaugh, A Spiritual
Advantage, March/April 1991, p. 21.
There is no need to quote further from articles of like tenor, but
one could examine such other examples as religious poetry, see
Macpherson, I Have Started Searching for Angels, November/December
1990, p. 18; religious textual analysis and commentary, see
Buterbaugh, Colossians 1:1-14: Abundant Life, id., at 20;
Buterbaugh, John 14-16: A Spiritual Advantage, March/April, pp.
20-21; and instruction on religious practice, see Early,
Thanksgiving and Prayer, November/December 1990, p. 21 (providing
readers with suggested prayers and posing contemplative questions
about biblical texts); Early, Hope and Spirit, March/April 1991,
p. 21 (similar).
Even featured essays on facially secular topics become platforms
from which to call readers to fulfill the tenets of Christianity
in their lives. Although a piece on racism has some general
discussion on the subject, it proceeds beyond even the analysis
and interpretation of biblical texts to conclude with the counsel
to take action because that is the Christian thing to do:
"God calls us to take the risks of voluntarily stepping out of our
comfort zones and to take joy in the whole richness of our
inheritance in the body of Christ. We must take the love we
receive from God and share it with all peoples of the world.
"Racism is a disease of the heart, soul, and mind, and only when
it is extirpated from the individual consciousness and replaced
with the love and peace of God will true personal and communal
healing begin." Liu, et al., "Eracing" Mistakes, November/December
1990, p. 14.
The same progression occurs in an article on eating disorders,
which begins with descriptions of anorexia and bulimia and ends
with this religious message:
"As thinking people who profess a belief in God, we must grasp
firmly the truth, the reality of who we are because of Christ.
Christ is the Bread of Life (John 6:35). Through Him, we are full.
He alone can provide the ultimate source of spiritual fulfillment
which permeates the emotional, psychological, and physical
dimensions of our lives." Ferguson & Lassiter, From Calorie to
Calvary, September/October 1991, p. 14.
This writing is no merely descriptive examination of religious
doctrine or even of ideal Christian practice in confronting life's
social and personal problems. Nor is it merely the expression of
editorial opinion that incidentally coincides with Christian
ethics and reflects a Christian view of human obligation. It is
straightforward exhortation to enter into a relationship with God
as revealed in Jesus Christ, and to satisfy a series of moral
obligations derived from the teachings of Jesus Christ. These are
not the words of "student news, information, opinion,
entertainment, or academic communicatio[n] . . ." (in the language
of the University's funding criterion, App. to Pet. for Cert.
61a), but the words of "challenge [to] Christians to live, in word
and deed, according to the faith they proclaim and . . . to
consider what a personal relationship with Jesus Christ means" (in
the language of Wide Awake's founder, App. 45). The subject is 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,
and if the Clause was meant to accomplish nothing else, it was
meant to bar this use of public money. Evidence on the subject
antedates even the Bill of Rights itself, as may be seen in the
writings of Madison, whose authority on questions about the
meaning of the Establishment Clause is well settled, e.g.,
Committee for Public Ed. & Religious Liberty v. Nyquist, 413 U.S.
756, 770, n. 28 (1973); Everson v. Board of Ed. of Ewing, 330 U.S.
1, 13 (1947). Four years before the First Congress proposed the
First Amendment, Madison gave his opinion on the legitimacy of
using public funds for religious purposes, in the Memorial and
Remonstrance Against Religious Assessments, which played the
central role in ensuring the defeat of the Virginia tax assessment
bill in 1786 and framed the debate upon which the Religion Clauses
stand:
"Who does not see that . . . the same authority which can force a
citizen to contribute three pence only of his property for the
support of any one establishment, may force him to conform to any
other establishment in all cases whatsoever?" James Madison,
Memorial and Remonstrance Against Religious Assessments 3
(hereinafter Madison's Remonstrance), reprinted in Everson, supra,
at 65-66 (appendix to dissent of Rutledge, J.).
Madison wrote against a background in which nearly every Colony
had exacted a tax for church support, Everson, supra, at 10, n. 8,
the practice having become "so commonplace as to shock the
freedom-loving colonials into a feeling of abhorrence," 330 U.S.,
at 11 (footnote omitted). Madison's Remonstrance captured the
colonists'"conviction that individual religious liberty could be
achieved best under a government which was stripped of all power
to tax, to support, or otherwise to assist any or all religions,
or to interfere with the beliefs of any religious individual or
group." Ibid.[FOOTNOTE 1] Their sentiment as expressed by Madison
in Virginia, led not only to the defeat of Virginia's tax
assessment bill, but also directly to passage of the Virginia Bill
for Establishing Religious Freedom, written by Thomas Jefferson.
That bill's preamble declared that "to compel a man to furnish
contributions of money for the propagation of opinions which he
disbelieves, is sinful and tyrannical," Jefferson, A Bill for
Establishing Religious Freedom, reprinted in 5 The Founder's
Constitution 84-85 (P. Kurland & R. Lerner eds. 1987), and its
text provided "[t]hat no man shall be compelled to frequent or
support any religious worship, place, or ministry whatsoever . . .
recognized that the provisions of the First Amendment, in the
drafting and adoption of which Madison and Jefferson played such
leading roles, had the same objective and were intended to provide
the same protection against governmental intrusion on religious
liberty as the Virginia statute." Ibid.; see also Laycock,
"Nonpreferential" Aid to Religion: A False Claim About Original
Intent, 27 Wm. & Mary L. Rev. 875, 921, 923 (1986) ("[I]f the
debates of the 1780's support any proposition, it is that the
Framers opposed government financial support for religion. . . .
They did not substitute small taxes for large taxes; three pence
was as bad as any larger sum. The principle was what mattered.
With respect to money, religion was to be wholly voluntary.
Churches either would support themselves or they would not, but
the government would neither help nor interfere") (footnote
omitted); T. Curry, The First Freedoms 217 (1986) (At the time of
the framing of the Bill of Rights, "[t]he belief that government
assistance to religion, especially in the form of taxes, violated
religious liberty had a long history"); J. Choper, Securing
Religious Liberty 16 (1995) ("There is broad consensus that a
central threat to the religious freedom of individuals and
groups-indeed, in the judgment of many the most serious
infringement upon religious liberty-is posed by forcing them to
pay taxes in support of a religious establishment or religious
activities") (footnotes omitted; internal quotation marks
omitted).[FOOTNOTE 2]
The principle against direct funding with public money is patently
violated by the contested use of today's student activity
fee.[FOOTNOTE 3] Like today's taxes generally, the fee is
Madison's threepence. The University exercises the power of the
State to compel a student to pay it, see Jefferson's Preamble,
supra, and the use of any part of it for the direct support of
religious activity thus strikes at what we have repeatedly held to
be the heart of the prohibition on establishment. Everson, 330
U.S., at 15- 16 ("The 'establishment of religion clause' . . .
means at least this . . . . No tax in any amount, large or small,
can be levied to support any religious activities or institutions,
whatever they may be called, or whatever form they may adopt to
teach or practice religion"); see School Dist. of Grand Rapids v.
Ball, 473 U.S. 373, 385 (1985) ("Although Establishment Clause
jurisprudence is characterized by few absolutes, the Clause does
absolutely prohibit government-financed or government-sponsored
indoctrination into the beliefs of a particular religious faith");
Committee for Public Education v. Nyquist, 413 U.S., at 780 ("In
the absence of an effective means of guaranteeing that the state
aid derived from public funds will be used exclusively for
secular, neutral, and nonideological purposes, it is clear from
our cases that direct aid in whatever form is invalid"); id., at
772 ("Primary among those evils" against which the Establishment
Clause guards "have been sponsorship, financial support, and
active involvement of the sovereign in religious activity")
(citations and internal quotation marks omitted); see also Lee v.
Weisman, 505 U.S. 577, 640 (1992) (Scalia, J., dissenting) ("The
coercion that was a hallmark of historical establishments of
religion was coercion of religious orthodoxy and of financial
support by force of law and threat of penalty") (emphasis
omitted); cf. Flast v. Cohen, 392 U.S. 83, 103-104 (1968) (holding
that taxpayers have an adequate stake in the outcome of
Establishment Clause litigation to satisfy Article III standing
requirements, after stating that "[o]ur history vividly
illustrates that one of the specific evils feared by those who
drafted the Establishment Clause and fought for its adoption was
that the taxing and spending power would be used to favor one
religion over another or to support religion in general").
The Court, accordingly, has never before upheld direct state
funding of the sort of proselytizing published in Wide Awake and,
in fact, has categorically condemned state programs directly
aiding religious activity, School Dist. v. Ball, supra, at 395
(striking programs providing secular instruction to nonpublic
school students on nonpublic school premises because they are
"indistinguishable from the provision of a direct cash subsidy to
the religious school that is most clearly prohibited under the
Establishment Clause"); Wolman v. Walter, 433 U.S. 229, 254 (1977)
(striking field trip aid program because it constituted "an
impermissible direct aid to sectarian education"); Meek v.
Pittenger, 421 U.S. 349, 365 (1975) (striking material and
equipment loan program to nonpublic schools because of the
inability to "channe[l] aid to the secular without providing
direct aid to the sectarian"); Committee for Public Education v.
Nyquist, supra, at 774 (striking aid to nonpublic schools for
maintenance and repair of facilities because "[n]o attempt is made
to restrict payments to those expenditures related to the upkeep
of facilities used exclusively for secular purposes"); Levitt v.
Committee for Public Ed. & Religious Liberty, 413 U.S. 472, 480
(1973) (striking aid to nonpublic schools for state-mandated tests
because the state had failed to "assure that the state-supported
activity is not being used for religious indoctrination"); Tilton
v. Richardson, 403 U.S. 672, 683 (1971) (plurality opinion)
(striking as insufficient a 20-year limit on prohibition for
religious use in federal construction program for university
facilities because unrestricted use even after 20 years "is in
effect a contribution of some value to a religious body"); id., at
689 (Douglas, Black, and Marshall, JJ., concurring in part and
dissenting in part).
Even when the Court has upheld aid to an institution performing
both secular and sectarian functions, it has always made a
searching enquiry to ensure that the institution kept the secular
activities separate from its sectarian ones, with any direct aid
flowing only to the former and never the latter. Bowen v.
Kendrick, 487 U.S. 589, 614-615 (1988) (upholding grant program
for services related to premarital adolescent sexual relations on
ground that funds cannot be "used by the grantees in such a way as
to advance religion"); Roemer v. Board of Pub. Works of Md., 426
U.S. 736, 746-748, 755, 759-761 (1976) (plurality opinion)
(upholding general aid program restricting uses of funds to
secular activities only); Hunt v. McNair, 413 U.S. 734, 742-745
(1973) (upholding general revenue bond program excluding from
participation facilities used for religious purposes); Tilton v.
Richardson, supra, at 679-682 (plurality opinion) (upholding
general aid program for construction of academic facilities as
"[t]here is no evidence that religion seeps into the use of any of
these facilities"); see Board of Ed. of Central School Dist No. 1
v. Allen, 392 U.S. 236, 244-248 (1968) (upholding textbook loan
program limited to secular books requested by individual students
for secular educational purposes).
Reasonable minds may differ over whether the Court reached the
correct result in each of these cases, but their common principle
has never been questioned or repudiated. "Although Establishment
Clause jurisprudence is characterized by few absolutes, the Clause
does absolutely prohibit government-financed . . . indoctrination
into the beliefs of a particular religious faith." School Dist. v.
Ball, 473 U.S., at 385.
B
Why does the Court not apply this clear law to these clear facts
and conclude, as I do, that the funding scheme here is a clear
constitutional violation? The answer must be in part that the
Court fails to confront the evidence set out in the preceding
section. Throughout its opinion, the Court refers uninformatively
to Wide Awake's "Christian viewpoint," ante, at 4, or its
"religious perspective," ante, at 11, and in distinguishing
funding of Wide Awake from the funding of a church, the Court
maintains that "[Wide Awake] is not a religious institution, at
least in the usual sense," ante, at 24;[FOOTNOTE 4] see also ante,
at 5. The Court does not quote the magazine's adoption of Saint
Paul's exhortation to awaken to the nearness of salvation, or any
of its articles enjoining readers to accept Jesus Christ, or the
religious verses, or the religious textual analyses, or the
suggested prayers. And so it is easy for the Court to lose sight
of what the University students and the Court of Appeals found so
obvious, and to blanch the patently and frankly evangelistic
character of the magazine by unrevealing allusions to religious
points of view.
Nevertheless, even without the encumbrance of detail from Wide
Awake's actual pages, the Court finds something sufficiently
religious about the magazine to require examination under the
Establishment Clause, and one may therefore ask why the
unequivocal prohibition on direct funding does not lead the Court
to conclude that funding would be unconstitutional. The answer is
that the Court focuses on a subsidiary body of law, which it
correctly states but ultimately misapplies. That subsidiary body
of law accounts for the Court's substantial attention to the fact
that the University's funding scheme is "neutral," in the formal
sense that it makes funds available on an evenhanded basis to
secular and sectarian applicants alike. Ante, at 18-20. While this
is indeed true and relevant under our cases, it does not alone
satisfy the requirements of the Establishment Clause, as the Court
recognizes when it says that evenhandedness is only a "significant
factor" in certain Establishment Clause analysis, not a
dispositive one. Ante, at 18; see ante, at 19-20; see also ante,
at 1-3 (O'Connor, J., concurring); id., at 2 ("Neutrality, in both
form and effect, is one hallmark of the Establishment Clause");
Capitol Square Review and Advisory Board v. Pinette, ___ U.S. ___,
___ (slip op., at 6) (O'Connor, J., concurring in part and
concurring in the judgment) ("the Establishment Clause forbids a
State from hiding behind the application of formally neutral
criteria and remaining studiously oblivious to the effects of its
actions. . . . [N]ot all State policies are permissible under the
Religion Clauses simply because they are neutral in form"). This
recognition reflects the Court's appreciation of two general
rules: that whenever affirmative government aid ultimately
benefits religion, the Establishment Clause requires some
justification beyond evenhandedness on the government's part; and
that direct public funding of core sectarian activities, even if
accomplished pursuant to an evenhanded program, would be entirely
inconsistent with the Establishment Clause and would strike at the
very heart of the Clause's protection. See ante, at 22 ("We do not
confront a case where, even under a neutral program that includes
nonsectarian recipients, the government is making direct money
payments to an institution or group that is engaged in religious
activity"); ante, at 19-20, 23-24; see also ante, at 2 (O'Connor,
J., concurring) ("[Our] decisions . . . provide no precedent for
the use of public funds to finance religious activities").
In order to understand how the Court thus begins with sound rules
but ends with an unsound result, it is necessary to explore those
rules in greater detail than the Court does. As the foregoing
quotations from the Court's opinion indicate, the relationship
between the prohibition on direct aid and the requirement of
evenhandedness when affirmative government aid does result in some
benefit to religion reflects the relationship between basic rule
and marginal criterion. At the heart of the Establishment Clause
stands the prohibition against direct public funding, but that
prohibition does not answer the questions that occur at the
margins of the Clause's application. Is any government activity
that provides any incidental benefit to religion likewise
unconstitutional? Would it be wrong to put out fires in burning
churches, wrong to pay the bus fares of students on the way to
parochial schools, wrong to allow a grantee of special education
funds to spend them at a religious college? These are the
questions that call for drawing lines, and it is in drawing them
that evenhandedness becomes important. However the Court may in
the past have phrased its line-drawing test, the question whether
such benefits are provided on an evenhanded basis has been
relevant, for the question addresses one aspect of the issue
whether a law is truly neutral with respect to religion (that is,
whether the law either "advance[s] [or] inhibit[s] religion,"
Allegheny County v. Greater Pittsburgh Chapter, American Civil
Liberties Union, 492 U.S. 573, 592 (1989)). In Widmar v. Vincent,
454 U.S. 263, 274 (1981), for example, we noted that "[t]he
provision of benefits to [a] broad . . . spectrum of [religious
and nonreligious] groups is an important index of secular effect."
See also Board of Ed. of Kiryas Joel Village School Dist. v.
Grumet, 512 U.S. ___, ___ (slip op., at 14-17) (1994). In the
doubtful cases (those not involving direct public funding), where
there is initially room for argument about a law's effect,
evenhandedness serves to weed out those laws that impermissibly
advance religion by channelling aid to it exclusively.
Evenhandedness is therefore a prerequisite to further enquiry into
the constitutionality of a doubtful law,[FOOTNOTE 5] but
evenhandedness goes no further. It does not guarantee success
under Establishment Clause scrutiny.
Three cases permitting indirect aid to religion, Mueller v. Allen,
463 U.S. 388 (1983), Witters v. Washington Dept. of Services for
Blind, 474 U.S. 481 (1986), and Zobrest v. Catalina Foothills
School Dist., 509 U.S. 1 (1993), are among the latest of those to
illustrate this relevance of evenhandedness when advancement is
not so obvious as to be patently unconstitutional. Each case
involved a program in which benefits given to individuals on a
religion-neutral basis ultimately were used by the individuals, in
one way or another, to support religious institutions.[FOOTNOTE 6]
In each, the fact that aid was distributed generally and on a
neutral basis was a necessary condition for upholding the program
at issue. Witters, supra, at 487-488; Mueller, supra, at 397-399;
Zobrest, supra, at ___ (slip op., at 7-8). But the significance of
evenhandedness stopped there. We did not, in any of these cases,
hold that satisfying the condition was sufficient, or dispositive.
Even more importantly, we never held that evenhandedness might be
sufficient to render direct aid to religion constitutional. Quite
the contrary. Critical to our decisions in these cases was the
fact that the aid was indirect; it reached religious institutions
"only as a result of the genuinely independent and private choices
of aid recipients," Witters, supra, at 487; see also Mueller,
supra, at 399-400; Zobrest, supra, at ___-___ (slip op., at 7-12).
In noting and relying on this particular feature of each of the
programs at issue, we in fact reaffirmed the core prohibition on
direct funding of religious activities. See Zobrest, supra, at
___-___ (slip op., at 9-12); Witters, supra, at 487; see also
Mueller, supra, at 399-400. Thus, our holdings in these cases were
little more than extensions of the unremarkable proposition that
"a State may issue a paycheck to one of its employees, who may
then donate all or part of that paycheck to a religious
institution, all without constitutional barrier . . . ." Witters,
supra, at 486-487. Such "attenuated financial benefit[s],
ultimately controlled by the private choices of individual[s]," we
have found, are simply not within the contemplation of the
Establishment Clause's broad prohibition. Mueller, supra, at 400;
see also Witters, supra, at 493 (opinion of O'Connor,
J.).[FOOTNOTE 7]
Evenhandedness as one element of a permissibly attenuated benefit
is, of course, a far cry from evenhandedness as a sufficient
condition of constitutionality for direct financial support of
religious proselytization, and our cases have unsurprisingly
repudiated any such attempt to cut the Establishment Clause down
to a mere prohibition against unequal direct aid. See, e.g.,
Tilton v. Richardson, 403 U.S., at 682-684 (striking portion of
general aid program providing grants for construction of college
and university facilities to the extent program made possible the
use of funds for sectarian activities);[FOOTNOTE 8] Wolman v.
Walter, 433 U.S., at 252-255 (striking funding of field trips for
nonpublic school students, such as are "provided to public school
students in the district," because of unacceptable danger that
state funds would be used to foster religion). And nowhere has the
Court's adherence to the preeminence of the no-direct-funding
principle over the principle of evenhandedness been as clear as in
Bowen v. Kendrick, 487 U.S. 589.
Bowen involved consideration of the Adolescent Family Life Act
(AFLA), a federal grant program providing funds to institutions
for counseling and educational services related to adolescent
sexuality and pregnancy. At the time of the litigation, 141 grants
had been awarded under the AFLA to a broad array of both secular
and religiously affiliated institutions. Id., at 597. In an
Establishment Clause challenge to the Act brought by taxpayers and
other interested parties, the District Court resolved the case on
a pre-trial motion for summary judgment, holding the AFLA program
unconstitutional both on its face and also insofar as religious
institutions were involved in receiving grants under the Act. When
this Court reversed on the issue of facial constitutionality under
the Establishment Clause, id., at 602-618, we said that there was
"no intimation in the statute that at some point, or for some
grantees, religious uses are permitted." Id., at 614. On the
contrary, after looking at the legislative history and applicable
regulations, we found safeguards adequate to ensure that grants
would not be "used by . . . grantees in such a way as to advance
religion." Id., at 615.
With respect to the claim that the program was unconstitutional as
applied, we remanded the case to the District Court "for
consideration of the evidence presented by appellees insofar as it
sheds light on the manner in which the statute is presently being
administered." Id., at 621. Specifically, we told the District
Court, on remand, to "consider . . . whether in particular cases
AFLA aid has been used to fund 'specifically religious
activit[ies] in an otherwise substantially secular setting.'"
Ibid., quoting Hunt v. McNair, 413 U.S., at 743. In giving
additional guidance to the District Court, we suggested that
application of the Act would be unconstitutional if it turned out
that aid recipients were using materials "that have an explicitly
religious content or are designed to inculcate the views of a
particular religious faith." Ibid. At no point in our opinion did
we suggest that the breadth of potential recipients, or
distribution on an evenhanded basis, could have justified the use
of federal funds for religious activities, a position that would
have made no sense after we had pegged the Act's facial
constitutionality to our conclusion that advancement of religion
was not inevitable. Justice O'Connor's separate opinion in the
case underscored just this point: "I fully agree . . . that
'[p]ublic funds may not be used to endorse the religious message.'
Post, at 642 [(Blackmun, J., dissenting)]. . . . [A]ny use of
public funds to promote religious doctrines violates the
Establishment Clause." Id., at 622-623 (concurring opinion)
(emphasis in original).
Bowen was no sport; its pedigree was the line of Everson v. Board
of Ed., 330 U.S., at 16-18, Board of Ed. v. Allen, 392 U.S., at
243-249, Tilton v. Richardson, 403 U.S., at 678-682, Hunt v.
McNair, 413 U.S., at 742-745, and Roemer v. Board of Pub. Works of
Md., 426 U.S., at 759-761. Each of these cases involved a general
aid program that provided benefits to a broad array of secular and
sectarian institutions on an evenhanded basis, but in none of them
was that fact dispositive. The plurality opinion in Roemer made
this point exactly:
"The Court has taken the view that a secular purpose and a facial
neutrality may not be enough, if in fact the State is lending
direct support to a religious activity. The State may not, for
example, pay for what is actually a religious education, even
though it purports to be paying for a secular one, and even though
it makes its aid available to secular and religious institutions
alike." 426 U.S., at 747 (opinion of Blackmun, J.).
Instead, the central enquiry in each of these general aid cases,
as in Bowen, was whether secular activities could be separated
from the sectarian ones sufficiently to ensure that aid would flow
to the secular alone.
Witters, Mueller, and Zobrest expressly preserve the standard thus
exhibited so often. Each of these cases explicitly distinguished
the indirect aid in issue from contrasting examples in the line of
cases striking down direct aid, and each thereby expressly
preserved the core constitutional principle that direct aid to
religion is impermissible. See Zobrest, supra, at ___ (slip op.,
at 9-12) (distinguishing Meek v. Pittenger, 421 U.S. 349, and
School Dist. v. Ball, 473 U.S. 373, and noting that "'[t]he state
may not grant aid to a religious school, whether cash or in kind,
where the effect of the aid is that of a direct subsidy to the
religious school'") (quoting Witters, 474 U.S., at 487); see also
ibid.; Mueller, 463 U.S., at 399. It appears that the University
perfectly understood the primacy of the no-direct-funding rule
over the evenhandedness principle when it drew the line short of
funding "any activity which primarily promotes or manifests a
particular belief(s) in or about a deity or an ultimate
reality."[FOOTNOTE 9] App. to Pet. for Cert. 66a.
C
Since conformity with the marginal or limiting principle of
evenhandedness is insufficient of itself to demonstrate the
constitutionality of providing a government benefit that reaches
religion, the Court must identify some further element in the
funding scheme that does demonstrate its permissibility. For one
reason or another, the Court's chosen element appears to be the
fact that under the University's Guidelines, funds are sent to the
printer chosen by Wide Awake, rather than to Wide Awake itself.
Ante, at 22-24.
1
If the Court's suggestion is that this feature of the funding
program brings this case into line with Witters, Mueller, and
Zobrest (discussed supra, at 18-19), the Court has misread those
cases, which turned on the fact that the choice to benefit
religion was made by a non-religious third party standing between
the government and a religious institution. See Witters, 474 U.S.,
at 487; see also Mueller, 463 U.S., at 399-400; Zobrest, 509 U.S.,
at ___-___ (slip op., at 7-12). Here there is no third party
standing between the government and the ultimate religious
beneficiary to break the circuit by its independent discretion to
put state money to religious use. The printer, of course, has no
option to take the money and use it to print a secular journal
instead of Wide Awake. It only gets the money because of its
contract to print a message of religious evangelism at the
direction of Wide Awake, and it will receive payment only for
doing precisely that. The formalism of distinguishing between
payment to Wide Awake so it can pay an approved bill and payment
of the approved bill itself cannot be the basis of a decision of
Constitutional law. If this indeed were a critical distinction,
the Constitution would permit a State to pay all the bills of any
religious institution;[FOOTNOTE 10] in fact, despite the Court's
purported adherence to the no-direct-funding principle, the State
could simply hand out credit cards to religious institutions and
honor the monthly statements (so long as someone could devise an
evenhanded umbrella to cover the whole scheme). Witters and the
other cases cannot be distinguished out of existence this way.
2
It is more probable, however, that the Court's reference to the
printer goes to a different attempt to justify the payment. On
this purported justification, the payment to the printer is
significant only as the last step in an argument resting on the
assumption that a public university may give a religious group the
use of any of its equipment or facilities so long as secular
groups are likewise eligible. The Court starts with the cases of
Widmar v. Vincent, 454 U.S. 263 (1981), Board of Ed. of Westside
Community Schools v. Mergens, 496 U.S. 226 (1990), and Lamb's
Chapel v. Center Moriches Union Free School Dist., 508 U.S. ___
(1993), in which religious groups were held to be entitled to
access for speaking in government buildings open generally for
that purpose. The Court reasons that the availability of a forum
has economic value (the government built and maintained the
building, while the speakers saved the rent for a hall); and that
economically there is no difference between the University's
provision of the value of the room and the value, say, of the
University's printing equipment; and that therefore the University
must be able to provide the use of the latter. Since it may do
that, the argument goes, it would be unduly formalistic to draw
the line at paying for an outside printer, who simply does what
the magazine's publishers could have done with the University's
own printing equipment. Ante, at 23-24.
The argument is as unsound as it is simple, and the first of its
troubles emerges from an examination of the cases relied upon to
support it. The common factual thread running through Widmar,
Mergens, and Lamb's Chapel, is that a governmental institution
created a limited forum for the use of students in a school or
college, or for the public at large, but sought to exclude
speakers with religious messages. See generally Perry Ed. Assn. v.
Perry Local Educators' Assn., 460 U.S. 37, 45-46 (1983) (forum
analysis). In each case the restriction was struck down either as
an impermissible attempt to regulate the content of speech in an
open forum (as in Widmar and Mergens) or to suppress a particular
religious viewpoint (as in Lamb's Chapel, see infra, at 37-38). In
each case, to be sure, the religious speaker's use of the room
passed muster as an incident of a plan to facilitate speech
generally for a secular purpose, entailing neither secular
entanglement with religion nor risk that the religious speech
would be taken to be the speech of the government or that the
government's endorsement of a religious message would be inferred.
But each case drew ultimately on unexceptionable Speech Clause
doctrine treating the evangelist, the Salvation Army, the
millennialist or the Hare Krishna like any other speaker in a
public forum. It was the preservation of free speech on the model
of the street corner that supplied the justification going beyond
the requirement of evenhandedness.
The Court's claim of support from these forum-access cases is
ruled out by the very scope of their holdings. While they do
indeed allow a limited benefit to religious speakers, they rest on
the recognition that all speakers are entitled to use the street
corner (even though the State paves the roads and provides police
protection to everyone on the street) and on the analogy between
the public street corner and open classroom space. Thus, the Court
found it significant that the classroom speakers would engage in
traditional speech activities in these forums, too, even though
the rooms (like street corners) require some incidental state
spending to maintain them. The analogy breaks down entirely,
however, if the cases are read more broadly than the Court wrote
them, to cover more than forums for literal speaking. There is no
traditional street corner printing provided by the government on
equal terms to all comers, and the forum cases cannot be lifted to
a higher plane of generalization without admitting that new
economic benefits are being extended directly to religion in clear
violation of the principle barring direct aid. The argument from
economic equivalence thus breaks down on recognizing that the
direct state aid it would support is not mitigated by the street
corner analogy in the service of free speech. Absent that, the
rule against direct aid stands as a bar to printing services as
well as printers.
3
It must, indeed, be a recognition of just this point that leads
the Court to take a third tack, not in coming up with yet a third
attempt at justification within the rules of existing case law,
but in recasting the scope of the Establishment Clause in ways
that make further affirmative justification unnecessary. Justice
O'Connor makes a comprehensive analysis of the manner in which the
activity fee is assessed and distributed. She concludes that the
funding differs so sharply from religious funding out of
governmental treasuries generally that it falls outside
Establishment Clause's purview in the absence of a message of
religious endorsement (which she finds not to be present). Ante,
at 4-8 (O'Connor, J., concurring). The opinion of the Court
concludes more expansively that the activity fee is not a tax, and
then proceeds to find the aid permissible on the legal assumption
that the bar against direct aid applies only to aid derived from
tax revenue. I have already indicated why it is fanciful to treat
the fee as anything but a tax, sup |
