ROSENBERGER v. RECTOR & VISITORS OF THE UNIVERSITY OF VIRGINIA 515 U.S. 819 (1995)

Does the first amendment ban on establishment of religion mean that when a public university provides money for printing expenses for extracurricular student political, cultural, and ideological groups, that a nondenominational Christian student group must be excluded? The Supreme Court said "no" in Rosenberger v. Rector & Visitors of the University of Virginia, decided in 1995. The Christian group was not seeking special treatment: subsidies were going to a wide variety of student groups without regard to the opinions they were putting forth. By a 5–4 margin, the Court held that subsidizing the Christian newspaper along with all the others does not establish religion, and that it would violate the freedom of speech for the university to discriminate against the Christians because of their religious message.

The case represents a clash between a "neutrality" view of the establishment clause and a "separationist" view. Neutrality means that the government must not discriminate in favor of religion, but may provide benefits that are equally available to others. According to the separationist view—which first appeared in Supreme Court decisions in the late 1940s—government should be forbidden to give any "direct" support to religion, even on a nondiscriminatory basis.

Separationists try to distinguish between direct and indirect support in order to justify government services like police and fire protection for churches. But is nonprofit tax exemption direct or indirect aid? What about allowing a religious student group to meet on campus at the state university? Is there a relevant difference between providing the students a room and providing them a subsidy for printing costs?

The Rosenberger decision clearly leans toward the neutrality view of the First Amendment: that government programs should not discriminate for or against religion. But even the majority opinion was not unequivocal on this principle, and the four dissenters would have prohibited the printing subsidy as a violation of the establishment clause. Rosenberger is surely a step away from the idea that religious groups and institutions should be specially targeted for exclusion from public programs. But the argument for neutrality under the First Amendment has not—at least yet—conclusively been won.

Maimon Schwarzschild
(2000)

(see also: Government Aid to Religious Institutions; Religious Liberty; Separation of Church and State.)