High court struggles with free-speech, religion issues in Va. case


WASHINGTON -- In an hour of intense debate over government support for religion, the Supreme Court struggled yesterday to find a way out of a constitutional dilemma it has helped create.

That dilemma emerged in an appeal by three former college students who complain that their efforts to publish a religious magazine at the University of Virginia were unconstitutionally frustrated when they were denied money from student activity fees.

A final ruling on their case, due by summer, could have a major effect on students' access to public money for religious activity at state colleges and universities, and maybe also at public high schools and grade schools.

The court finds itself caught between some of its prior rulings: those saying that college students with a religious view have equal free-speech rights on state-run campuses, and others saying that government must avoid giving cash benefits to religion.

At yesterday's public hearing, the justices left the impression that they were divided on how to deal with that dilemma as they define how far government may go to finance openly religious campus speech or publications. The two justices who appear to hold the balance of power when the court is deeply divided on religion issues -- Sandra Day O'Connor and Anthony M. Kennedy -- at times seemed to lean both ways.

The Virginia case has taken on symbolic significance because it involves the university Thomas Jefferson founded with the aim of keeping it free from church ties.

But it also has significance because groups working to expand public aid to religious education -- including providing tuition zTC vouchers for parochial school students -- see the case as advancing their goal.

Three former students involved in the case stopped the publication of their Christian magazine, Wide Awake, after the university refused to help finance it.

Their lawyer, Michael W. McConnell, a University of Chicago law professor, asserted that the university in Charlottesville was willing to subsidize the free speech of radical student groups, no matter how controversial their views, but not students who wish to publicize a religious viewpoint.

He sought to make the case one involving only equality of free speech, claiming that money is made available in a discriminatory way, based on what students would say or write.

But he ran into pointed suggestions by Justices John Paul

Stevens and David H. Souter that the university also refuses to subsidize some student political groups.

Justice O'Connor, noting that Mr. McConnell was calling for strictneutrality, mentioned some of the court's past decisions against public financing of parochial schools. She asked whether the government ought to be allowed to "single out religion" for different treatment in funding. It was unclear whether she was advocating that view.

The law professor conceded that government need not provide money for "overwhelmingly religious schools," when such aid seems to favor only one religion.

Justice Kennedy pressed Mr. McConnell to say whether the government could refuse to finance a religious activity when it thought that activity was religious but wasn't sure about it. The professor said funding should not be withheld on "a nebulous fear" that a group was too religious.

Mr. McConnell was questioned most aggressively by Justices Souter and Ruth Bader Ginsburg, both seeming skeptical of public aid to religious activity. But he received support from Justice Antonin Scalia and Chief Justice William H. Rehnquist.

Justice Stephen G. Breyer, the newest member of the court who has not yet lined up with any bloc on religious issues, asked noncommittal questions of both Mr. McConnell and the university's lawyer, John C. Jeffries Jr., a University of Virginia law professor.

Mr. Jeffries' argument was challenged repeatedly by Justice Scalia, and at times by Chief Justice Rehnquist. The attorney stressed that the university was not trying to stamp out religious speech on the campus but was choosing only to maintain a "financial disengagement" from religious activity.

In answer to questions from Justice Souter, Mr. Jeffries said that the university not only would not provide money to pro-religious publications but also would withhold money from those with an anti-religious theme. "We are not trying to pick out a religious point of view and trying to suppress it," he argued.

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