Lead Opinion
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
i — 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 (1950), 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 full-time 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. CIO’s enjoy access to University facilities, including meeting rooms and computer terminals. Id.. at 30.
All CIO’s 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 “recognition] 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, CIO’s 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 CIO’s that are otherwise eligible for funding
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 CIO’s. 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 Rosen-berger 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 at
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.
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. § 1988. 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 dis
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 CIO’s.
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,
These principles provide the framework forbidding the State to exercise 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 “[tjhere 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.,
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.”
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
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 antireligious 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 multi-
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 827. 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 897-898, 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,
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.”
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 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,
The Guideline invoked by the University to deny third-party contractor payments on behalf of WAP effects 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 that 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
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 fun
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.
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 in
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,
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 Cal.,
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 fostered or encouraged” any mistaken impression that the student newspapers speak for the University. Capitol Square Review and Advisory Bd. v. Pinette, ante, at 766. 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
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 Public Works of Md.,
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 that use meeting rooms for sectarian activities, accompanied by some devotional exercises. See Widmar,
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 896. 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
“[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 City of New York,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
The judgment of the Court of Appeals must be, and is, reversed.
It is so ordered.
Concurrence Opinion
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 do not worship.” Board of Ed. of Kiryas Joel Village School Dist. v. Grumet,
As Justice Souter demonstrates, however, post, at 868-872 (dissenting opinion), there exists another axiom in the history and precedent of the Establishment Clause. “Public
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,
In Witters v. Washington Dept. of Servs. for Blind,
The need for careful judgment and fine distinctions presents itself even in extreme cases. Everson v. Board of Ed. of Ewing,
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 838-839. 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.
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 843, 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 nonreligious, 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
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 Cal.,
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, “[experience proves that the Establishment Clause, like the Free Speech Clause, cannot easily be reduced to a single test.” Kiryas Joel,
Subject to these comments, I join the opinion of the Court.
Concurrence Opinion
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 adher
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,
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 irreligión. See, e.g., Laycock, “Nonpreferential” Aid to Religion: A False Claim About Original Intent, 27 Wm. & Mary L. Rev. 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.
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 875. 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 fram
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 . ...” Madison’s Amendments to the Declaration of Rights (May 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,
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 878, 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 $600 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, Separation of Church and State: Historical Fact and Current Fiction, 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,
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.,
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.,
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 879, 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 education 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
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, 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. 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.
Notes
The dissent suggests that the assessment bill would have created a “generally available subsidy program” comparable to respondents’ Student Activities Fund (SAF). See post, at 869, n. 1. The dissent’s characterization of the bill, however, is squarely at odds with the bill’s clear purpose and effect to provide “for the support of Christian teachers.” Everson,
Even assuming that future legislators would adhere to the bill’s directive in appropriating the undesignated tax revenues, nothing in the bill
To the contrary, Madison’s Remonstrance decried the fact that the assessment bill would require civil society to take “cognizance” of religion. Madison’s Remonstrance ¶ 1, reprinted in Everson v. Board of Ed. of Ewing,
A number of other, less familiar examples of what amount to direct funding appear in early Acts of Congress. See, e. g., Act of Feb. 20, 1833, ch. 42, 4 Stat. 618-619 (authorizing the State of Ohio to sell “all or any part of the lands heretofore reserved and appropriated by Congress for the support of religion within the Ohio Company’s . .. purchases .. . and to invest the money arising from the sale thereof, in some productive fund; the proceeds of which shall be for ever annually applied ... for the support of religion within the several townships for which said lands were originally reserved and set apart, and for no other use or purpose whatso
The Virginia experience during the period of the Assessment Controversy itself is inconsistent with the rigid “no-aid” principle embraced by the dissent. Since at least 1777, the Virginia Legislature authorized tax exemptions for property belonging to the “commonwealth, or to any county, town, college, houses for divine worship, or seminary of learning.” Act of Jan. 23, 1800, ch. 2, § 1, 1800 Va. Acts. And even Thomas Jefferson, respondents’ founder and a champion of disestablishment in Virginia, advocated the use of public funds in Virginia for a department of theology in conjunction with other professional schools. See S. Padover, The Complete Jefferson 1067 (1943); see also id,., at 958 (noting that Jefferson advocated giving “to the sectarian schools of divinity the full benefit [of] the public provisions made for instruction in the other branches of science”).
In the tax literature, this identity is called a “tax expenditure,” a concept “based upon recognition of the fact that a government can appropriate money to a particular person or group by using a special, narrowly directed tax deduction or exclusion, instead of by using its ordinary direct
Although Professor Bittker is certainly a leading scholar in the tax field, the dissent’s reliance on Bittker, see post, at 881, n. 7, is misplaced in this context. See Adler, The Internal Revenue Code, The Constitution, and the Courts: The Use of Tax Expenditure Analysis in Judicial Decision Making, 28 Wake Forest L. Rev. 855, 862, n. 30 (1993):
“Early criticism of the tax expenditure concept focused on the difficulty of drawing a dividing line between what is or is not a special provision. Professor Boris Bittker, for example, argued that since no tax is all inclusive, exemptions from any tax could not be described as the equivalent of subsidies. Boris I. Bittker, Churches, Taxes and the Constitution, 78 Yale L. J. 1285 (1969). This wholesale rejection of tax expenditure analysis was short-lived and attracted few supporters. Rather, the large body of literature about tax expenditures accepts the basic concept that special exemptions from tax function as subsidies. The current debate focuses on whether particular items are correctly identified as tax expenditures and whether incentive provisions are more efficient when structured as tax expenditures rather than direct spending programs. See generally [numerous authorities].”
Dissenting Opinion
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
HH
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 839; see also ante, at 846-848 (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
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, Nov./Dec. 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*866 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, ibid.
“ ‘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, Sept./Oct. 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, Mar./Apr. 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, Nov. /Dec. 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, Mar./Apr., pp. 20-21; and instruction on religious practice, see Early, Thanksgiving and Prayer, Nov./Dec. 1990, p. 21 (providing readers with suggested prayers and posing contemplative questions about biblical texts); Early, Hope and Spirit, Mar./Apr. 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 con-
“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, Rosenberger, Mourad, and Prince, “Eracing” Mistakes, Nov./Dee. 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, Sept. /Oct. 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 com-municatio[n]...” (in the language of the University’s funding
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,
“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.).
The Court, accordingly, has never before upheld direct state funding of the sort of proselytizing published in Wide
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,
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,
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 826, or its “religious perspective,” ante, at 832, 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
Neverthéless, 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 839-842. 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 839; see ante, at 840-841; see also ante, at 846-848 (O’Connor, J., concurring); ante, at 846 (“Neutrality, in both form and effect, is one hallmark of the Establishment Clause”); Capitol Square Review and Advisory Bd. v. Pinette, ante, at 777 (O’Connor, J., concur
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
Three cases permitting indirect aid to religion, Mueller v. Allen,
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
With respect to the claim that the program was unconstitutional as applied, we remanded the ease to the District Court “for consideration of the evidence presented by appel-lees 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 activities] in an otherwise substantially secular setting.’ ” Ibid., quoting Hunt v. McNair,
Bowen was no sport; its pedigree was the line of Everson v. Board of Ed.,
“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 eases 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,
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 842-844.
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 879-881), the Court has misread those cases, which turned on the fact that the choice to benefit religion was made by a nonreligious third party standing between the government and a religious institution. See Witters, supra, at 487; see also Mueller, supra, at 399-400; Zobrest, supra, at 8-13. 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
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,
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.,
The Court’s claim of support from these forum-access cases is ruled out by the very scope of their holdings. While
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 849-852 (con
Although it was a taxation scheme that moved Madison to write in the first instance, the Court has never held that government resources obtained without taxation could be used for direct religious support, and our cases on direct government aid have frequently spoken in terms in no way limited to tax revenues. E. g., School Dist. v. Ball,
Allowing nontax funds to be spent on religion would, in fact, fly in the face of clear principle. Leaving entirely aside the question whether public nontax revenues could ever be used to finance religion without violating the endorsement
D
Nothing in the Court’s opinion would lead me to end this enquiry into the application of the Establishment Clause any
II
Given the dispositive effect of the Establishment Clause’s bar to funding the magazine, there should be no need to decide whether in the absence of this bar the University would violate the Free Speech Clause by limiting funding as it has done. Widmar,
The Court acknowledges, ante, at 832, the necessity for a university to make judgments based on the content of what may be said or taught when it decides, in the absence of unlimited amounts of money or other resources, how to honor its educational responsibilities. Widmar, supra, at 276; cf. Perry,
The issue whether a distinction is based on viewpoint does not turn simply on whether a government regulation happens to be applied to a speaker who seeks to advance a particular viewpoint; the issue, of course, turns on whether the burden on speech is explained by reference to viewpoint. See Cornelius, supra, at 806 (“[T]he government violates the First Amendment when it denies access to a speaker solely
Accordingly, the prohibition on viewpoint discrimination serves that important purpose of the Free Speech Clause, which is to bar the government from skewing public debate. Other things being equal, viewpoint discrimination occurs when government allows one message while prohibiting the messages of those who can reasonably be expected to respond. See First Nat. Bank of Boston v. Bellotti,
There is no viewpoint discrimination in the University’s application of its Guidelines to deny funding to Wide Awake. Under those Guidelines, a “religious activity],” which is not eligible for funding, App. to Pet. for Cert. 62a, is “an activity which primarily promotes or manifests a particular belief(s) in or about a deity or an ultimate reality,” id., at 66a. It is clear that this is the basis on which Wide Awake Productions was denied funding. Letter from Student Council to Ronald W. Rosenberger, App. 54 (“In reviewing the request by Wide Awake Productions, the Appropriations Committee determined your organization’s request could not be funded as it is a religious activity”). The discussion of Wide Awake’s content, supra, at 865-868, shows beyond any question that it “primarily promotes or manifests a particular belief(s) in or about a deity ... ,” in the very specific sense that its manifest function is to call students to repentance, to commitment to Jesus Christ, and to particular moral action because of its Christian character.
If the Guidelines were written or applied so as to limit only such Christian advocacy and no other evangelical efforts that might compete with it, the discrimination would be based on viewpoint. But that is not what the regulation authorizes; it applies to Muslim and Jewish and Buddhist advocacy as well as to Christian. And since it limits funding to activities promoting or manifesting a particular belief not only “in” but “about” a deity or ultimate reality, it applies to agnostics and atheists as well as it does to deists and theists
The Court, of course, reads the Guidelines differently, but while I believe the Court is wrong in construing their breadth, the important point is that even on the Court’s own construction the Guidelines impose no viewpoint discrimination. In attempting to demonstrate the potentially chilling effect such funding restrictions might have on learning in our Nation’s universities, the Court describes the Guidelines as “a sweeping restriction on student thought and student inquiry,” disentitling a vast array of topics to funding. Ante, at 836. As the Court reads the Guidelines to exclude “any writing that is explicable as resting upon a premise which presupposes the existence of a deity or ultimate reality,” ibid., as well as “those student journalistic efforts which primarily manifest or promote a belief that there is no deity and no ultimate reality,” the Court concludes that the major works of writers from Descartes to Sartre would be barred from the funding forum, ante, at 837. The Court goes so far as to suggest that the Guidelines, properly interpreted, tolerate nothing much more than essays on “making pasta or peanut butter cookies.” Ibid.
Now, the regulation is not so categorically broad as the Court protests. The Court reads the word “primarily” (“primarily promotes or manifests a particular belief(s) in or about a deity or an ultimate reality”) right out of the Guidelines, whereas it is obviously 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, or simply descriptive
The Guidelines are thus substantially different from the access restriction considered in Lamb’s Chapel, the case upon which the Court heavily relies in finding a viewpoint distinction here, ante, at 830-832. Lamb’s Chapel addressed a school board’s regulation prohibiting the after-hours use of school premises “by any group for religious purposes,” even though the forum otherwise was open for a variety of social, civic, and recreational purposes.
To put the point another way, the Court’s decision equating a categorical exclusion of both sides of the religious debate with viewpoint discrimination suggests the Court has concluded that primarily religious and antireligious speech, grouped together, always provides an opposing (and not merely a related) viewpoint to any speech about any secular topic. Thus, the Court’s reasoning requires a university that funds private publications about any primarily nonreli
►* — i H — H H-\
Since I cannot see the future I cannot tell, whether today’s decision portends much more than making a shambles out of student activity fees in public colleges. Still, my apprehension is whetted by Chief Justice Burger’s warning in Lemon v. Kurtzman,
I respectfully dissent.
Justice Thomas suggests that Madison would have approved of the assessment bill if only it had satisfied the principle of evenhandedness. Nowhere in the Remonstrance, however, did Madison advance the view that Virginia, should be able to provide financial support for religion as part of a generally available subsidy program. Indeed, while Justice Thomas claims that the “funding provided by the Virginia assessment was to be extended only to Christian sects,” ante, at 855, it is clear that the bill was more general in scope than this. While the bill, which is reprinted in Everson v. Board of Ed. of Ewing,
Nor is it fair to argue that Madison opposed the bill only because it treated religious groups unequally. Ante, at 854-855 (Thomas, J., concurring). In various paragraphs of the Remonstrance, Madison did complain about the bill’s peculiar burdens and exemptions, Everson, supra, at 66, but to identify this factor as the sole point of Madison’s opposition to the bill is unfaithful to the Remonstrance’s text. Madison strongly inveighed against the proposed aid for religion for a host of reasons (the Remonstrance numbers 15 paragraphs, each containing at least one point in opposition), and crucial here is the fact that many of those reasons would have applied whether or not the state aid was being distributed equally among sects, and whether or not the aid was going to those sects in the context of an evenhanded government program. See, e. g., Madison’s Remonstrance, reprinted in Everson,
In attempting to recast Madison’s opposition as having principally been targeted against “governmental preferences for particular religious faiths,” ante, at 856 (emphasis in original), Justice Thomas wishes to wage a battle that was lost long ago, for “this Court has rejected unequivocally the contention that the Establishment Clause forbids only governmental preference of one religion over another,” School Dist. of Abington Township v. Schempp,
Justice Thomas attempts to cast doubt on this accepted version of Establishment Clause history by reference to historical facts that are largely inapposite. Ante, at 857-858, 862-863 (concurring opinion). As I have said elsewhere, individual Acts of Congress, especially when they are few and far between, scarcely serve as an authoritative guide to the meaning of the Religion Clauses, for “like other politicians, [members of the early Congresses] could raise constitutional ideals one day and turn their backs on them the next. [For example,] . . . [t]en years after proposing the First Amendment, Congress passed the Alien and Sedition Acts, measures patently unconstitutional by modern standards. If the early Congress’s political actions were determinative, and not merely relevant, evidence of constitutional meaning, we would have to gut our current First Amendment doctrine to make room for political censorship.” Lee v. Weisman, supra, at 626 (concurring opinion). The legislation cited by Justice Thomas, including the Northwest Ordinance, is no more dispositive than the Alien and Sedition Acts in interpreting the First Amendment. Even less persuasive, then, are citations to constitutionally untested Acts dating from the mid-19th century, for without some rather innovative argument, they cannot be offered as providing an authoritative gloss on the Framers’ intent.
Justice Thomas’s references to Madison’s actions as a legislator provide little support for his cause. Justice Thomas seeks to draw a significant lesson out of the fact that, in seeking to disestablish the Anglican Church in Virginia in 1776, Madison did not inveigh against state funding of religious activities. Ante, at 857 (concurring opinion). That was
Similarly, the invocation of Madison’s tenure on the congressional committee that approved funding for legislative chaplains provides no support for more general principles that run counter to settled Establishment Clause jurisprudence. As I have previously pointed out, Madison, upon retirement, “insisted that ‘it was not with my approbation, that the deviation from [the immunity of religion from civil jurisdiction] took place in Congs., when they appointed Chaplains, to be paid from the Natl. Treasury.’ ” Lee,
In the District Court, the parties agreed to the following facts: “The University of Virginia has charged at all times relevant herein and currently charges each full-time student a compulsory student activity fee of $14.00 per semester. There is no procedural or other mechanism by which a student may decline to pay the fee.” App. 37; see also id., at 9, 21.
To the extent the Court perceives some distinction between the printing and dissemination of evangelism and proselytization, and core religious activity “in [its] usual sense,” ante, at 844, this distinction goes entirely unexplained in the Court’s opinion.
In a narrow band of cases at the polar extreme from direct funding cases, those involving essential public benefits commonly associated with living in an organized society (like police and fire protection, for example), evenhandedness may become important to ensuring that religious interests are not inhibited.
In Zobrest, a deaf student sought to have an interpreter, provided under a state Act aiding individuals with disabilities, accompany him to a Roman Catholic high school. In Witters, a blind student sought to use aid, provided under a state program for assistance to handicapped persons, to attend a private Christian college. In Mueller, parents sought to take a tax deduction, available for parents of both public and nonpublic schoolchildren, for certain expenses incurred in connection with providing education for their children in private religious schools.
Walz v. Tax Comm’n of City of New York,
Justice Thomas’s assertion, that “[a] tax exemption in many cases is economically and functionally indistinguishable from a direct monetary subsidy,” ante, at 859 (concurring opinion) (footnote omitted), assumes that the “natural” or “correct” tax base is so self-evident that any provision excusing a person or institution from taxes to which others are subjected must be a departure from the natural tax base rather than part of the definition of the tax base itself. The equivalence (asserted by Justice Thomas, ibid.) between a direct money subsidy and the tax liability avoided by an institution (because it is part of the class of institutions that defines the relevant tax base by its exclusion) was tested and dispatched long ago by Professor Bittker in Churches, Taxes and the Constitution, 78 Yale L. J. 1285 (1969). Justice Thomas’s suggestion that my “reliance
Although the main opinion in Tilton was a plurality, the entire Court was unanimous on this point. See
Congress apparently also reads our eases as the University did, for it routinely excludes religious activities from general funding programs. See, e. g., 20 U. S. C. § 1062(b) (federal grant program for institutions of higher education; “[n]o grant may be made under this chapter for any educational program, activity, or service related to sectarian instruction or religious worship, or provided by a school or department of divinity”); 20 U. S. C. § 1069c (certain grants to higher education institutions “may not be used ... for a school or department of divinity or any religious worship or sectarian activity ...”); 20 U. S. C. § 1132c-3(c) (1988 ed., Supp. V) (federal assistance for renovation of certain academic facilities; “[n]o loan may be made under this part for any educational program, activity or service related to sectarian instruction or religious worship or provided by a school or department of divinity or to an institution in which a substantial portion of its functions is subsumed in a religious mission”); 20 U. S. C. § 1132i(c) (grant program for educational facilities; “no project assisted with funds under this subchapter shall ever be used for religious worship or a sectarian activity or for a school or department of divinity”); 20 U. S. C. § 1213d (“No grant may be made under this chapter for any educational program, activity, or service related to sectarian instruction or religious worship, or provided by a school or department of divinity”); 25 U. S. C. § 3306(a) (1988 ed., Supp. V) (funding for Indian higher education programs; “[n]one of the funds made available under this subchapter may be used for study at any school or department of divinity or for any religious worship or sectarian activity”); 29 U. S. C. § 776(g) (grants for projects and activities for rehabilitation of handicapped persons; “[n]o funds provided under this subchapter may be used to assist in the construction of any facility which is or will be used for religious worship or any sectarian activity”); 42 U. S. C. § 3027(a)(14)(A)(iv) (1988 ed. and Supp. V) (requiring States seeking federal aid for construction of centers for the elderly to submit plans providing assurances that “the facilities] will not be used and [are] not intended to be used for sectarian instruction or as ... place[s] for religious worship”); 42 U. S. C. § 5001(a)(2) (1988 ed.,
The Court acknowledges that “if the State pays a church’s bills it is subsidizing it,” and concedes that “we must guard against this abuse.” Ante, at 844. These concerns are not present here, the Court contends, because Wide Awake “is not a religious institution, at least in the usual sense of that term as used in our ease law.” Ibid. The Court’s concession suggests that its distinction between paying a religious institution and paying a religious institution’s bills is not really significant. But if the Court is relying on its characterization of Wide Awake as not a religious institution, “at least in the usual sense,” the Court could presumably stop right there.
The Court draws a distinction between a State’s use of public funds to advance its own speech and the State’s funding of private speech, suggesting that authority to make content-related choices is at its most powerful when the State undertakes the former. Ante, at 833-835. I would not argue otherwise, see Hazelwood School Dist. v. Kuhlmeier,
1 do not decide that all viewpoint discrimination in a public university’s funding determinations would violate the Free Speech Clause. If, however, the determinations are made on the basis of a reasonable subject-matter distinction, but not on a viewpoint distinction, there is no violation. In a limited-access forum, a speech restriction must be “ ‘reasonable in light of the purpose served by the forum’ ” as well as viewpoint neutral. E. g., Lamb’s Chapel,
See also Tr. of Oral Arg. in Lamb’s Chapel v. Center Moriches Union Free School Dist., O. T. 1992, No. 91-2024, where counsel for the school district charged with enforcing the restriction unequivocally admitted that anyone with an atheistic or antireligious message would be permitted to
“QUESTION: But do I understand your statement you made earlier that supposing you had a communist group that wanted to address the subject of family values and they thought there was a value in not having children waste their time going to Sunday school or church and therefore they had a point of view that was definitely antireligious, they would be permitted, under your policy, to discuss family values in that context?
“[COUNSEL]: Yes. Yes, Your Honor, that’s correct.
“QUESTION: Counsel, in your earlier discussions with [the Court] you indicated that communists would be able to give their perspective on family. I — I assume from that that atheists would be able to give theirs under your rules.
“[COUNSEL]: Yes, Your Honor.”