THE VIRGINIAN-PILOT
Copyright (c) 1995, Landmark Communications, Inc.
DATE: Thursday, March 2, 1995 TAG: 9503020479
SECTION: LOCAL PAGE: B3 EDITION: FINAL
SOURCE: BY PHILIP WALZER, STAFF WRITER
DATELINE: WASHINGTON LENGTH: Medium: 94 lines
Lawyers for the University of Virginia and a former student vied Wednesday to persuade the U.S. Supreme Court that the school's denial of money to a Christian magazine was either a logical step to avoid church-state entanglement or an unconstitutional clamp-down on students' religious freedom.
But the lawyers didn't get far into their arguments, as the justices repeatedly interrupted them to get at the intricacies of U.Va.'s funding policies and the far-reaching effects of any changes.
The case, which could redefine the relationship between government and religion, centers on U.Va.'s refusal in 1991 to award $5,862 to Wide Awake, a student Christian magazine. The university deemed the publication a ``religious activity,'' which is barred from funding under U.Va. guidelines.
The Supreme Court is expected to announce its decision in the summer.
``The point is, a university cannot use its power to skew the marketplace of ideas by favoring some viewpoints above others,'' said Michael W. McConnell, a University of Chicago professor representing Ron Rosenberger, the student who founded Wide Awake.
But U.Va. law professor John C. Jeffries Jr. argued, ``Choices inevitably must be made when allocating scarce resources.''
He later added, ``There is a long and honored tradition in this country of financial disengagement between church and state. We think it's entirely reasonable to adhere to that position.''
McConnell faced closer questioning from a greater number of justices, including David H. Souter and Sandra Day O'Connor, who often lean to the conservative side.
Justice Stephen G. Breyer said, ``They're funding educational activities and they don't want to fund noneducational activities. Why can't they do that? Do they have to fund every activity?''
The justices lingered on the parallels, and the differences, between U.Va.'s funding policies for religious and political organizations. Political groups that engage in ``lobbying'' or ``electioneering'' are not eligible. Neither is any religious group that ``primarily promotes or manifests a particular belief.''
``I don't see dramatic differences between the two premises,'' Souter said.
But the justices also explored the wider ramifications of requiring U.Va. to aid Wide Awake, which disbanded when Rosenberger left U.Va. in 1992.
``If the state wanted to dispense funds . . . (to promote) moral values,'' Souter said, ``on your reasoning, direct cash payments could be made to any church group.''
Justice Ruth Bader Ginsburg questioned whether there was any legal precedent for Wide Awake's request. ``Is there any decision so far that has authorized a direct cash contribution from a state organ in support of a religious activity . . . for a pursuit that the religious group has charted for itself?''
McConnell responded: ``I'm not aware of any case.''
Jeffries, the U.Va. lawyer, also was grilled, particularly by Justices Antonin Scalia and Anthony M. Kennedy. They, along with Chief Justice William H. Rehnquist, appeared most sympathetic to Rosenberger's views.
When Jeffries said, ``We're not picking out any religious point of view and trying to suppress it,'' Scalia shot back: ``But you're picking out theology. I don't know if you would exclude any other type of thought'' from funding.
Scalia also questioned why the university allowed the magazine to use campus space, but not money. ``You're saying there's a major step between providing a classroom and providing money to rent a classroom. You think that's a step off the cliff?''
Kennedy wondered whether the university would cut off funding to a student newspaper if one of its four columnists espoused Christian views. ``Can a university do that under the First Amendment? I doubt it. Why is this case any different?''
Clarence Thomas was the only justice who didn't join in the questioning.
A key argument that went unmentioned Wednesday is the university's distinction between political and cultural activities. In his brief, McConnell questioned why U.Va. financed the Muslim Students and Jewish Law Students Associations, arguing that these decisions showed that the policy was arbitrary. But U.Va. responded that the groups were primarily cultural organizations.
McConnell didn't raise the issue Wednesday, he said after the hearing, because ``in a half-hour, it's hard to talk about everything.''
At moments during the hourlong session, the justices punctured the sober atmosphere with one-liners, eliciting laughs from the courtroom. Scalia asked at one point: ``Who wrote these guidelines for the university?''
Later, Souter, referring to the wording for religious activities, said: ``They like the word `manifest.' ''
Among those who attended the hearing were U.Va. President John T. Casteen III and state Attorney General Jim Gilmore, who is supporting Rosenberger.
``I was very encouraged by the justices' questioning,'' Rosenberger said afterward. ``I am more confident than I was going in that I would take the day.''
KEYWORDS: SUPREME COURT UNIVERSITY OF VIRGINIA by CNB