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Rosenberger v. University of Virginia


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515 U.S. 819 (1995), argued 1 Mar. 1995, decided 29 June 1995 by vote of 5 to 4; Kennedy for the Court, O’Connor and Thomas concurring, Souter, Stevens, Ginsburg, and Breyer in dissent. The bitter cultural wars of the 1980s and early 1990s produced a host of powerful conflicts over religion. Nowhere, however, were these tensions more evident than in Rosenberger, a case that pitted religious conservatives against civil libertarians. Ronald W. Rosenberger in 1990 was a student at the University of Virginia and editor of the short-lived Christian publication Wide Awake. The magazine included Christian symbols on each page and professed an editorial policy that “challenge[s] Christians to live, in word and deed, according to the faith they proclaim and to encourage students to consider what a personal relationship to Jesus Christ means” (p. 833). Rosenberger requested $6,000 from the Student Activity Fund, a request that first a student advisory group and then the administration of the university denied. They did so on the grounds that Wide Awake proselytized religion and violated existing guidelines prohibiting the funding of religious groups. Rosenberger claimed, however, that the university funded other religious groups, including the Jewish Law Students Association and the Muslim Student Association, and that its actions amounted to a violation of his right and that of other Christian students to express a point of view.

There was more than a little irony in the fact that the case arose at the University of Virginia, an institution founded by Thomas Jefferson, whose views on the need to separate church and state were well known, as were his convictions that the marketplace of ideas should be wide open. Behind the case, however, was an important issue: had the Supreme Court's professed position of neutrality in matters involving church-state issues come to allow a pattern of religious discrimination? The issues posed by the case were especially difficult since they implicated not only the Establishment Clause of the First Amendment but the guarantee of freedom of speech in that same amendment.

The lower federal courts found in favor of the University of Virginia. The Court of Appeals for the Fourth Circuit affirmed a summary judgment ruling from a federal district court. The Circuit Court found that the university's invocation of viewpoint discrimination in denying Rosenberger third-party funds had violated the Speech Clause of the First Amendment. The Circuit Court held that in balancing the requirements of the Speech and Establishment Clauses, the university had to do so in favor of the latter. The Fourth Circuit concluded that the Establishment Clause prohibited the university, a state entity, from providing any direct assistance to religion.

The unique set of facts in the case stirred to action all of the major constituencies involved in the debate over church-state relations. Conservative groups, such as Pat Robertson's American Center for Law and Justice, the Christian Legal Society, and the Family Research Council urged the Court to find in favor of Rosenberger and to scrap its “Lemon test,” named after the high court's ruling in Lemon v. Kurtzman (1971). That test mandated that government actions touching on religion must have a secular purpose, must neither advance nor inhibit religion, and must not excessively entangle church and state. The state of Virginia took the unusual step of opposing the position of its own university and siding, instead, with the religious right.

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Subjects: Law.


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