Religious Speech as Free Speech


On its final day of the 1995 term, the Supreme Court upheld the right of free speech as guaranteed by the First Amendment in two cases. At least one of them may well come back to haunt it.

That was the 5-4 decision in which the court ruled that the University of Virginia had to fund a Christian campus publication if it funded any other such student activities. The decision sent a chill up the spine of those who believe in strict separation of church and state, which is also required by the First Amendment's Establishment Clause. Justice David Souter said, "The Court today for the first time approves direct funding of core religious activities by an arm of the state." Spokesmen for religious organizations said this would lead to judicial approval of such things as direct state funding for students who choose to attend parochial schools, for example.

There will no doubt be many suits to achieve that and other religious ends now. The court is just asking for trouble, for its majority knows it should not -- and probably will not -- take such a big next step -- or any next step at all. Justice Anthony Kennedy went to great lengths to say in the opinion of the court that the decision was limited, emphasizing that student fees, not taxes, provided the subsidy. He apparently had to do this to attract the crucial fifth vote of Justice Sandra Day O'Connor. She said in a concurrence that the decision was a free speech issue not a religion issue, adding specifically that she did not believe the court would subsequently turn its back on "the funding prohibition in Establishment Clause jurisprudence."

The second religion/free speech decision of the court was easier to reach. By a 7-2 vote the court said a state could not ban religious symbols or speech from public areas where free speech of other sorts was allowed. Ohio officials had refused to give the Ku Klux Klan permission to erect a cross in a park where other political and religious symbols were allowed.

In such settings the state must offer equal access, Justice Antonin Scalia said for the court. It also must make it clear the state is not endorsing any of the organizations using the public property or their messages, Justice O'Connor added in another concurrence. We believe most Americans can live comfortably with the Ohio decision, and, probably, the Virginia ruling; but on the latter one we're keeping our fingers crossed.

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