overruled state and lower federal courts. Speech with religious content, the Court has held, is simply another category of speech; it cannot be favored or disfavored.
This development began in
Widmar v. Vincent,
a 1981 case decided during Warren Burger's tenure as chief justice. A student Christian group at the University of Missouri at Kansas City wanted to hold a Bible study on campus. Their position, in effect, was this: “We're just like scores of other student groups, each with its own identity and purpose. Don't treat us differently. We only want the same treatment—access to campus—as anyone else.” The university balked, and then refused. The reason, the university said, was that to allow a religious student-organization to meet on campus would run afoul of the Establishment Clause. Advised by university counsel, officials claimed they had an interest of the highest order—what the law calls a “compelling interest.” The interest was that of avoiding a potential violation of the Constitution. Free speech, including the closely related freedom to associate, collided with the First Amendment mandate that church and state be separated.
The case was pending before the Court while I was on a trip to the University of Missouri at the main campus in Columbia. I was serving at the time in the Reagan administration as counselor to Attorney General William French Smith and found myself on occasion being asked to comment on cases pending in the Supreme Court. During a campus radio interview, I was asked about the case arising on the sister campus in Kansas City and how I thought the Court would decide the matter.
Predicting case outcomes is perilous at best, but this time I managed to find the right answer. The key, I said to the interviewer, was equality and nondiscrimination. No law-abiding student group should be excluded from using campus facilities. The state university would in no sense be “establishing” religion by allowing student groups to assemble freely. I went on to say that the students’ rights under the Free Exercise Clause, also part of the First Amendment, were in danger if the university officials insisted on excluding their group while allowing numerous other student organizations to meet on campus.
So it was that, Justice Sandra Day O'Connor, newly on the Court, joined forces with Justice Lewis F. Powell, Jr., in a strong majority opinion condemning the university's effort to exclude the faith-based group. What UMKC had done in the name of separation of church and state was unconstitutional. Having opened its doors to a wide variety of groups, more than 100 in all, it could not refuse groups that wanted to meet to discuss religious topics; Religious speech, including prayer and Bible study, represent forms of protected speech. Groups engaging in such speech, said the Court, may not be excluded while other organizations are permitted to meet and “speak.” With
Widmar
equality became, virtually overnight, the great organizing principle of freedom of speech.
The Court was shy of being unanimous by only one vote—Justice White's. Yet its message, although completely clear, didn't sink in. University and school administrators around the country did not change their ways. Harry Truman once said about presidential power: “I give orders, and nothing happens.” As time went on, the justices displayed frustration that public officials—and lower courts—weren't getting the straightforward message: Treat all groups, and speakers, alike. Don't target religious groups and deprive them of equal opportunity to meet and speak. This simple rule embraced the nondiscrimination principle, which is so familiar in other contexts. Once government establishes a “forum,” a place where speech and assembly can take place, then it may not discriminate against certain views or perspectives. This basic rule of fair play was obvious in the political and ideological arena.
The difficulty, of course, lay in
This development began in
Widmar v. Vincent,
a 1981 case decided during Warren Burger's tenure as chief justice. A student Christian group at the University of Missouri at Kansas City wanted to hold a Bible study on campus. Their position, in effect, was this: “We're just like scores of other student groups, each with its own identity and purpose. Don't treat us differently. We only want the same treatment—access to campus—as anyone else.” The university balked, and then refused. The reason, the university said, was that to allow a religious student-organization to meet on campus would run afoul of the Establishment Clause. Advised by university counsel, officials claimed they had an interest of the highest order—what the law calls a “compelling interest.” The interest was that of avoiding a potential violation of the Constitution. Free speech, including the closely related freedom to associate, collided with the First Amendment mandate that church and state be separated.
The case was pending before the Court while I was on a trip to the University of Missouri at the main campus in Columbia. I was serving at the time in the Reagan administration as counselor to Attorney General William French Smith and found myself on occasion being asked to comment on cases pending in the Supreme Court. During a campus radio interview, I was asked about the case arising on the sister campus in Kansas City and how I thought the Court would decide the matter.
Predicting case outcomes is perilous at best, but this time I managed to find the right answer. The key, I said to the interviewer, was equality and nondiscrimination. No law-abiding student group should be excluded from using campus facilities. The state university would in no sense be “establishing” religion by allowing student groups to assemble freely. I went on to say that the students’ rights under the Free Exercise Clause, also part of the First Amendment, were in danger if the university officials insisted on excluding their group while allowing numerous other student organizations to meet on campus.
So it was that, Justice Sandra Day O'Connor, newly on the Court, joined forces with Justice Lewis F. Powell, Jr., in a strong majority opinion condemning the university's effort to exclude the faith-based group. What UMKC had done in the name of separation of church and state was unconstitutional. Having opened its doors to a wide variety of groups, more than 100 in all, it could not refuse groups that wanted to meet to discuss religious topics; Religious speech, including prayer and Bible study, represent forms of protected speech. Groups engaging in such speech, said the Court, may not be excluded while other organizations are permitted to meet and “speak.” With
Widmar
equality became, virtually overnight, the great organizing principle of freedom of speech.
The Court was shy of being unanimous by only one vote—Justice White's. Yet its message, although completely clear, didn't sink in. University and school administrators around the country did not change their ways. Harry Truman once said about presidential power: “I give orders, and nothing happens.” As time went on, the justices displayed frustration that public officials—and lower courts—weren't getting the straightforward message: Treat all groups, and speakers, alike. Don't target religious groups and deprive them of equal opportunity to meet and speak. This simple rule embraced the nondiscrimination principle, which is so familiar in other contexts. Once government establishes a “forum,” a place where speech and assembly can take place, then it may not discriminate against certain views or perspectives. This basic rule of fair play was obvious in the political and ideological arena.
The difficulty, of course, lay in
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