High Court Decisions Narrow Division Between Church, State

WASHINGTON —  The U.S. Supreme Court narrowed the separation between church and state Thursday in two decisions pitting free speech rights against a constitutional ban on state-supported religion.

But the two rulings--allowing state university funding of a religious publication and the display of a religious symbol in a public park--were narrowly focused as the court sidestepped requests by conservative groups to change the theory it uses to decide church-state cases.

Although both decisions were victories for religious groups seeking to ease strict church-state separation, they could undermine those same groups’ political drive for a “religious equality” constitutional amendment that would further lower the wall between church and state.

In the most closely watched church-state case of the term, the court ruled 5 to 4 that the University of Virginia erred in not providing funds to a student-run Christian publication.

The case arose in 1991 when Ronald Rosenberger, a student at the Charlottesville university, sued the school because it denied a $5,862 subsidy from student activity funds to his “Wide Awake” magazine.

The university said it could not fund the publication because it constituted a “religious activity.” In arguments before the court this year, attorneys representing Rosenberger accused the university of practicing a double standard by funneling student fees to Jewish and Muslim student publications while denying money to “Wide Awake.”

The university said it regarded the Jewish and Muslim publications as “cultural” rather than religious activities.

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In the majority opinion, Justice Anthony Kennedy wrote that the court recognized constitutional “dangers where the government makes direct money payments” to religious institutions. But he said that in paying the printing costs of “Wide Awake,” the benefit to religion is “incidental” and poses no significant threat to the constitutional ban on government establishment of religion.

Joining Kennedy in the decision was Chief Justice William Rehnquist and Justices Sandra Day O’Connor, Antonin Scalia and Clarence Thomas.

In a sharply worded dissent, Justice David Souter said the court “for the first time, approves direct funding of core religious activities by an arm of the state.” He was joined by Justices John Paul Stevens, Ruth Bader Ginsberg and Stephen G. Breyer.

In a second church-state case, the court ruled 7 to 2 that the state of Ohio could not bar the Ku Klux Klan from displaying a Christian cross in a public park next to the state Capitol in Columbus. When government makes public space available for secular speech, the justices reasoned, it must also provide equal access to private religious expression.

Reaction to the rulings fell along predictable partisan lines, with conservative Christian groups hailing and church-state separationists criticizing the decisions.

“This [Rosenberger] is a miserable decision,” said the Rev. Barry Lynn, executive director of the Washington-based Americans United for Separation of Church and State. “Evangelism should be supported by the voluntary donations of the faithful, not extracted forcibly from other Americans who don’t share those beliefs.”

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But Jay Sekulow of the American Center for Law and Justice, the legal advocacy group founded by religious broadcaster Pat Robertson, called the Rosenberger ruling “a major victory for religious freedom” that will pave the way for “government subsidizing tuition vouchers for religious schools.”

Others, however, said the most far-reaching impact of the Rosenberger ruling is likely to be on the debate over a proposed religious equality amendment to the Constitution.

Conservatives who contend that the Supreme Court is hostile to religion are seeking a constitutional amendment that would ease the separation between church and state. They have yet to agree on the language of such an amendment.

The Rosenberger ruling demonstrates that “there is no need for a new ‘religious equality’ constitutional amendment,” said J. Brent Walker, general counsel of the Baptist Joint Committee, a religious-liberty advocacy group in Washington for 12 Baptist denominations and agencies.

“The decision in this case . . . makes clear that this court is certainly not hostile to religion.”

David V. Kahn, president of the American Jewish Congress, and Phil Baum, the group’s executive director, said in a joint statement that the Rosenberger ruling “points up again how wrong are those politicians and educators who claim that the Supreme Court has banished religious expression from the public square and that additional legislation or even a constitutional amendment are needed.”