Religious Use of State Property

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In widmar v. vincent (1981) the Supreme Court ruled that a state university's exclusionary policy in respect to students' use for prayer or religious instruction of premises generally available to students for nonreligious use violated the first amendment's guarantee of freedom of speech.

Earlier, relevant decisions, mostly involving Jehovah's Witnesses, were handed down before the Court ruled in cantwell v. connecticut (1940) that the free exercise of religion clause, like the free speech clause, was applicable to the states no less than to the federal government. Quite naturally, therefore, it applied to religious meetings and conversionary efforts the clear and present danger (later compelling state interest) test formulated in schenck v. united states (1919) in respect to political speech and meetings and continued to do so after Cantwell.

In Jamison v. Texas (1943) the Court rejected a contention that a city's power over streets and parks is not limited to making reasonable regulations for the control of traffic and maintenance of order, but encompasses power absolutely to prohibit use for communication of ideas, including religious ones. No doubt, it ruled in niemotko v. maryland (1951), a municipality may require a permit to hold religious meetings or, as in Cox v. New Hampshire (1941), public parades or processions, in streets and parks, but only to regulate time and place, and it may not refuse a permit by reason of the meeting's content, even if it includes verbal attacks upon some religions. This is so, the Court ruled in kunz v. new york (1941), even where prior missionary meetings had resulted in disorder because of the minister's scurrilous attacks on Roman Catholicism and Judaism, because the added cost of providing police to prevent possible violence does not justify infringement upon First Amendment rights.

Nor, as the Court held in Schneider v. Irvington (1939), may a municipality prohibit distribution of leaflets, including religious ones, on public streets and parks in order to prevent littering; the constitutional way to avoid littering is by arresting litterers, rather than restricting rights secured by the amendment. For the same reason, it reversed the conviction of a Jehovah's Witness who rang door bells to distribute religious handbills, in violation of an ordinance (enacted in part to prevent criminal entry) prohibiting ringing of doorbells or knocking on doors to distribute handbills.

The Court, in Widmar, did not hold that a state university must provide premises for student prayer and religious instruction, but only that it may not exclude such use if premises are provided for other noncurricular purposes. It is hardly likely that it intended thereby to overrule mccollum v. board of education (1948), wherein it outlawed religious instruction in public schools even where limited to pupils whose parents consent thereto. The distinction between the two situations lies in the fact that McCollum involved students of elementary and secondary school ages, whereas Widmar concerned students of college age who are generally less likely to be unduly influenced by on-premises prayer meetings.

In lynch v. donnelly (1984) the Court upheld the use of municipal funds to finance the cost of erecting and illuminating a life-size nativity scene in Pawtucket, Rhode Island, as part of an annual Christmas display. (Although the display was on private property, the Court made it clear that the result would have been the same had it been on town-owned property.) The Court based its decision on the recognition that Christmas had become a national secular holiday in American culture.

Leo Pfeffer


Pfeffer, Leo 1985 Religion, State and the Burger Court. Buffalo, N.Y.: Prometheus.

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Religious Use of State Property

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