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Public funding of religious activities approved in landmark 5-4 decision


WASHINGTON -- Crossing a constitutional divide for the first time, the Supreme Court voted 5-4 yesterday to allow a government agency to pay for the operations of a strictly religious group.

Specifically, the majority told the University of Virginia that the Constitution permits it to subsidize, with activities fees that students must pay, the printing costs of a student-run magazine devoted to Christian religious views.

In fact, the court ruled, the university could not constitutionally deny that subsidy if it underwrites other student publications.

Whether the ruling will result in government funding of other kinds of religious activity is likely to depend upon how lower courts interpret a flurry of opinions issued in the Virginia case.

One advocacy group -- the conservative American Center for Law and Justice -- immediately predicted, however, that the ruling would allow vouchers of public funds to help parents pay parochial school tuition.

In a second major ruling on religion in public life, the court decided by a 7-2 vote that government agencies do not necessarily violate the Constitution when they allow openly religious displays -- such as a Christmas nativity scene, a Christian cross, or a Jewish menorah for Hanukkah -- to be put up on the grounds of official buildings.

That decision, too, produced a welter of differing opinions. Thus lower courts got little clear-cut guidance on how to judge when a public park or government lawn should be put off-limits to a religious symbol.

The outcome in this particular case, though, was clear: The Ku Klux Klan received permission to erect a 10-foot cross on the lawn of the statehouse in downtown Columbus, Ohio, during the Christmas season. The court treated the cross as a religious, not a political -- or racist -- symbol.

The University of Virginia dispute arose over the use of a mandatory fee of $14 per semester from each student at the Charlottesville campus. A federal appeals court ruled that it would be unconstitutional to let a Christian magazine, Wide Awake, have a share of those funds to cover its printing costs.

In overturning that result, the five-justice majority emphasized that the money involved in the case was not from state tax collections, but was student money, put up for activities on campus.

Justice Anthony M. Kennedy, author of the main majority opinion, and Justice Sandra Day O'Connor, in a separate concurring opinion, stressed that the university had gone to special lengths to make clear that the activities of student organizations did not have the endorsementof the university.

The student magazine, Justice Kennedy said, did not seek a subsidy because of its Christian editorial views.

The court majority treated the Virginia case as primarily a question of equality of free speech on a state university campus. The university, by withholding aid solely from a religious magazine, had engaged in discrimination against one particular point of view, the court ruled.

Both Justices Kennedy and O'Connor stressed that the court was not deciding whether a student who objected to joining in subsidies for a religious group could demand a refund.

That very issue, however, is now in dispute in lower courts, and may reach the justices later.

Justice David H. Souter, writing for the dissenters, warned that the decision might turn out to be merely a "platform for yet further steps" in government aid to religion.

In the Ohio case dealing with the Christmas display, the court returned to an issue that has split it -- and communities across the country -- for decades.

The court did only a little yesterday to provide new clarity.

The justices acted on a case that began before Christmas in 1993, when the state government agency that controls the 10-acre square around the statehouse turned down a plea by the Klux Klan to put up a cross.

After a federal judge allowed the cross to go up, four days before Christmas, vandals tore it down. Church groups then applied and got permits to put several crosses on the lawn. The lawn also included a state-sponsored Christmas tree and a privately-sponsored menorah.

Ruling in favor of the Klan's cross, the court declared yesterday: "The state may not, on the claim of misperception of official endorsement, ban all private religious speech from the public square, or discriminate against" religious speech. That remark came in an opinion written by Justice Antonin Scalia for himself and three other justices.

But the most significant opinions probably were the separate ones written by Justices O'Connor and Souter: They straddled the distance between the reasoning used by Justice Scalia and the reasoning used by two dissenters.

The O'Connor and Souter opinions said that government could allow religious displays on public grounds unless a "reasonable observer" would consider that the government itself was endorsing the religious messages conveyed by the displays. One way to avoid that, they said, was to have a sign explicitly disclaiming government sponsorship.

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