Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: FRIDAY, November 4, 1994 TAG: 9411040071
SECTION: EDITORIAL PAGE: A-16 EDITION: METRO
SOURCE:
DATELINE: LENGTH: Medium
It is so because the UVa policy under challenge seems safely constitutional - whether regarded from the viewpoint of those who counsel judicial restraint in second-guessing other governmental agencies, or from the viewpoint of those who favor judicial activism in defense of church-state separation.
Under university guidelines, religious-advocacy publications (and also political-advocacy and sorority-fraternity publications) are ineligible for funding from a mandatory student-activity fee. That guideline, upheld by the lower courts and similar to the guidelines of many universities across the country, seems well within what constitutional scholar and former UVa President Robert O'Neil calls the "zone of institutional discretion" for dealing with church-state issues. (The policy existed before O'Neil became the university's president, and the case arose after he left that post.)
Resemblance between the UVa issue and the equal-accommodation law for high schools is mostly superficial. Under the latter, all public high schools that get federal money (that is, almost all public high schools) must accommodate student religious groups' requests for after-hours meeting space if those schools so accommodate non-religious student groups. But this is not necessary for compliance with the First Amendment, and the courts have never said it is; all they've said is that the law passed by Congress does not violate the First Amendment.
By this reasoning, the opposite policy from UVa's - a policy, that is, which would not rule out the funding of religious-advocacy publications - could also pass constitutional muster, it then being up to the university to avoid getting into a position of establishing religion, anti-religion, or a specific brand of either.
That task is easier for a university than at the high-school level or lower, where students are less mature and independent, and thus the element of implied endorsement and even compulsion is greater. Even so, implementation of a policy with room for using university money to support religious-advocacy publications is full of pitfalls, and raises tricky fairness problems in the distribution of finite funds. The UVa policy is probably a wise one.
The point for the court, however, isn't the wisdom of the policy but its constitutionality. The plaintiffs claim that the UVa guidelines deny them their First Amendment right to the free exercise of their religion.
If the magazine had been suppressed by the university and its campus dissemination hampered, the publishers would have a compelling case. If one sect's religious-advocacy journal were awarded subsidies while theirs was not, they might have a case. If their journal had been denied funding while university money was helping support anti-religion publications, they might have a case.
But to equate the right to exercise your religion freely with an entitlement to government financial support for your religion defies logic as well as constitutional history.
by CNB