Time to Strip the Lemon Pledge?

The Supreme Court's review next month of the only religion case on its docket this term could eventually open the gates to government-financed vouchers for parochial schools.

On the surface, Rosenberger v. Rector will determine whether a state university may refuse to subsidize a Christian student newspaper when it gives assistance to publications espousing other religious views. Yet the decision could have a much broader impact in reversing what some Court critics view as long-term discrimination toward Christian organizations expressing themselves in public forums.

The case involves the First Amendment rights of three Christian students at the University of Virginia who founded the now-defunct quarterly newspaper Wide Awake in 1990.

Ron Rosenberger received seed money to help launch Wide Awake from his nondenominational evangelical church. Rosenberger served as editor with Robert Prince, a Roman Catholic, and Gregory Mourad, a Presbyterian, who were the other staff members. They distributed 5,000 free copies to fellow students to "offer a Christian perspective on both personal and community issues, especially those relevant to college students at the University of Virginia," according to Rosenberger. He says the paper tried to counter the homosexual-rights and feminist vantages in other campus publications.

"Every viewpoint was out there in the public square, being subsidized by the university, except the Christian viewpoint," Rosenberger says. "There was even a lot out there at times about Christians, but it was always antagonistic or ridiculing us or, we felt, skewed in some way."

After publishing just two issues of Wide Awake, however, it became evident that advertising sales would not adequately cover publishing costs. So the students applied for $5,862 in funds from the student council committee that allocates money to student organizations from a $14 fee assessed each semester. The committee denied the request, saying Wide Awake constituted a "religious activity."

Rosenberger pointed out that the 118 student organizations receiving assistance included student newspapers with Muslim, Jewish, and homosexual perspectives. The university responded that these organizations were funded not as "religious activities" but as "cultural activities."

In July 1991, the students, assisted by the Washington, D.C.-based Center for Individual Rights (CIR), sued the university in federal court in Charlottesville, saying the funding refusal violated their free speech and freedom of religion rights.

Both that court and the Fourth U.S. Circuit Court of Appeals in Richmond ruled against them, saying discrimination had been justified by "a compelling interest in maintaining strict separation of church and state."

RETHINKING LEMON: The lower courts based their decisions on Lemon v. Kurtzman, which has served as the separation of church and state litmus test for more than two decades. In 1971, Lemon established that government policies are unconstitutional if they have the purpose or effect of advancing or inhibiting religion or if they would result in an "entanglement" of church and state. However, lower courts frequently have found the "Lemon test" nebulous and arbitrary in its application, sometimes yielding results that are actually hostile to religion.

Rosenberger v. Rector may offer the opportunity some Supreme Court justices have been looking for to clarify the Lemon test and even go beyond it. For instance, last term Justice Sandra Day O'Connor suggested the Court should re-examine discrimination decisions against "religion, religious ideas, religious people, or religious schools" and return to jurisprudence that shows "government impartiality, not animosity, toward religion."

University of Chicago law professor Michael McConnell will represent the students. Friend-of-the-court briefs have been filed by the Christian Legal Society, the Catholic League for Religious and Civil Rights, the Christian Life Commission of the Southern Baptist Convention, Family Research Council, National Association of Evangelicals, and Virginia Attorney General James Gilmore III.

"If they rule in our client's favor, it will allow greater freedom of viewpoints to be expressed on college campuses, particularly religious viewpoints," says cocounsel Michael McDonald of CIR. "Outside university settings, it could have wide applications in other government programs in which religious speech is being excluded."