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Religious Magazine Case Fuels Voucher Debate

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Washington

A U.S. Supreme Court ruling in favor of giving government funds to a student religious magazine at the University of Virginia is providing new fuel for the debate over school vouchers.

Proponents of giving parents government funds for tuition at private and religious schools are seizing on the High Court's ruling in the case to boost their cause. (See related story .)

"This case will propel and energize other religious-liberty issues, including the government subsidizing tuition vouchers for religious schools," said Jay A. Sekulow, the chief counsel of the American Center for Law and Justice, a Virginia Beach, Va., advocacy group founded by the religious broadcaster Pat Robertson.

But voucher opponents said the High Court's June 29 ruling in Rosenberger v. Rector and Visitors of University of Virginia (Case No. 94-329) was being misconstrued.

"This decision does not open the door to vouchers under any reading," said Steven K. Green, a lawyer with Americans United for Separation of Church and State, a Washington-based advocacy group.

The Court ruled 5 to 4 in Rosenberger that the university was required under the U.S. Constitution to subsidize the printing costs of a Christian student magazine on the same basis as other student publications.

In a separate case involving religious speech, the Court ruled 7 to 2 on June 29 that the Ku Klux Klan had a free-speech right to erect a cross in a public park in Columbus, Ohio, where several other groups displayed messages. That decision was in Capitol Square Review and Advisory Board v. Pinette (No. 94-780).

'Vital Principles'

The majority in the University of Virginia case overturned a federal appeals-court ruling that the public university could not subsidize the magazine without violating the First Amendment's prohibition on government establish-ment of religion.

Associate Justice Anthony M. Kennedy, writing for the majority, said that once a state-supported university agrees to support the private speech of student groups, it cannot "silence the expression of selected viewpoints" because that expression is religious.

"Vital First Amendment speech principles are at stake here," he wrote. His opinion was joined by Chief Justice William H. Rehnquist and Associate Justices Sandra Day O'Connor, Antonin Scalia, and Clarence Thomas.

The dissenters expressed strong concern that the ruling would open the door to greater governmental accommodation of religion.

"The Court today, for the first time, approves direct funding of core religious activities by an arm of the state," Associate Justice David H. Souter wrote. He was joined by Associate Justices John Paul Stevens, Ruth Bader Ginsburg, and Stephen G. Breyer.

However, Justice O'Connor wrote a separate concurrence in which she stressed that each controversy involving the First Amendment's establishment clause must be examined in context.

"The Court's decision today neither trumpets the supremacy of the neutrality principle nor signals the demise of the funding prohibition in establishment-clause jurisprudence," she wrote.

School Choice

In a memorandum last week to fellow voucher supporters, Clint Bolick, the litigation director of the Washington-based Institute for Justice, said he believes that at least five Justices "would vote to uphold a well-crafted school-choice program."

"This decision underscores the urgency of bringing school-choice cases to the Supreme Court as quickly as possible," he added.

But Mr. Green of Americans United said the Court majority made a key distinction between a student-activity fund and a general-tax fund. The case further turned on the fact that no government money was going into the coffers of the Christian magazine because the university paid the printers directly.

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