THE Supreme Court has opened the door another crack for the expression of religion in American public life. But it did not significantly change the "wall" of separation between church and state - something religious conservatives had hoped for.
In two key decisions, the court said a University of Virginia student committee discriminated against a Christian publication by not allowing it funds from a student-activity fee. It also ruled that a cross erected on the Ohio statehouse plaza by the Ku Klux Klan was allowable, since the Klan went through the proper channels of petition.
But in ruling both these cases to be violations of free speech, the court ducked some tough bullets in the contested area of separation of church and state.
Court Cracks Open Door on Religious Expression in Public
In the Virginia case, Rosenberger v. UVA, considered the more important ruling, it did not redraw the line of church-state separation, nor change the litmus test for doing so - what lawyers for the Christian magazine founded by Ronald Rosenberger wanted.
Instead, they found that students who published the Christian magazine had been discriminated against. "Basically, these are both free-speech cases with a little bit of religion rattling around," says Mark Tushnet, a dean at the Georgetown University law school. "It's not a reappraisal of church-state separation."
Writing for the court in a 5-to-4 decision, Justice Anthony Kennedy stated, "The university does not exclude religion as a subject matter, but selects for disfavored treatment those student journalistic efforts with religious editorial viewpoints."
The court did draw new lines for religious speech on Thursday. Previously, the court found the subject of religion acceptable if expressed as subject matter - but not if it was expressed as a viewpoint. In this week's ruling, it allowed the speech as a viewpoint, which the evangelical magazine certainly is.
A number of groups, including Americans United for the Separation of Church and State, expressed dismay over the Rosenberger decision, saying it would be used by the burgeoning religious right to gain federal tax aid for churches, and funding private religious schools through vouchers.
"The court has allowed a mechanism by which a public university can require students to subsidize religion against their will," says an American United spokesperson.
The Virginia case arose when the evangelical magazine "Wide Awake" was denied student funds. Mr. Rosenberger argued that since an Islamic and Jewish student publication received finanical help from the student activity fee, it was unfairm and discriminatory that "Wide Awake" did not.
The university argued that the student activity fee is a matter of university funding policy. The UVA student committee choosing groups to fund decided that "Wide Awake's" religious message was an abridgement of the separation of church and state. The Islamic and Jewish groups receive monies because the groups were "informational" and "cultural" rather than "proselytizing" in content.
Writing in dissent, Justice David Souter stated that the court, "for the first time, approves direct funding of core religious activities by an arm of the state."
In the so-called "Capital Square" case, the Klan had petitioned the state of Ohio to erect a cross on the statehouse plaza in Columbus during Christmas holidays. The question before the Supreme Court was: Can the cross be banned from a public place if it is put up by a group with an extremist message and history - even if not banned for a moderate ecumenical group?
Unlike the Virginia case, the court did step slightly into the waters of church-state separation in the Klan case.
Speaking for the 7-to-2 majority, Justice Antonin Scalia affirmed that the government was not supporting religious expression, since many groups were allowed free speech in a public place.
"The display was private religious speech that is as fully protected under the free-speech clause as secular private expression."