OCTOBER TERM, 1994
Syllabus
ROSENBERGER ET AL.
v. RECTOR AND VISITORS OF UNIVERSITY
OF VIRGINIA ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH
CIRCUIT
No. 94-329. Argued March 1, 1995-Decided June 29,1995
Respondent University of Virginia, a state instrumentality,
authorizes payments from its Student Activities Fund (SAF) to
outside contractors for the printing costs of a variety of
publications issued by student groups called "Contracted
Independent Organizations" (CIO's). The SAF receives its money from
mandatory student fees and is designed to support a broad range of
extracurricular student activities related to the University's
educational purpose. CIO's must include in their dealings with
third parties and in all written materials a disclaimer stating
that they are independent of the University and that the University
is not responsible for them. The University withheld authorization
for payments to a printer on behalf of petitioners' CIO, Wide Awake
Productions (WAP), solely because its student newspaper, Wide
Awake: A Christian Perspective at the University of Virginia,
"primarily promotes or manifests a particular belie[f] in or about
a deity or an ultimate reality," as prohibited by the University's
SAF Guidelines. Petitioners filed this suit under 42 U. S. C. §
1983, alleging,
inter alia, that the refusal to authorize
payment violated their First Amendment right to freedom of speech.
After the District Court granted summary judgment for the
University, the Fourth Circuit affirmed, holding that the
University's invocation of viewpoint discrimination to deny
third-party payment violated the Speech Clause, but concluding that
the discrimination was justified by the necessity of complying with
the Establishment Clause.
Held:
1. The Guideline invoked to deny SAF support, both in its terms
and in its application to these petitioners, is a denial of their
right of free speech. Pp. 828-837.
(a) The Guideline violates the principles governing speech in
limited public forums, which apply to the SAF under,
e. g.,
Perry Ed. Assn. v.
Perry Local Educators' Assn.,
460 U. S. 37,
46-47. In determining whether a State is acting within its power to
preserve the limits it has set for such a forum so that the
exclusion of a class of speech there is legitimate, see,
e.
g., id., at 49, this Court has observed a distinction between, on
the one hand, content discrimination-i.
e.,
discrimination
820
Syllabus
against speech because of its subject matter-which may be
permissible if it preserves the limited forum's purposes, and, on
the other hand, viewpoint discrimination-i.
e.,
discrimination because of the speaker's specific motivating
ideology, opinion, or perspective-which is presumed impermissible
when directed against speech otherwise within the forum's
limitations, see id., at 46. The most recent and most apposite case
in this area is
Lamb's Chapel v.
Center Moriches Union
Free School Dist., 508 U. S. 384, 393, in
which the Court held that permitting school property to be used for
the presentation of all views on an issue except those dealing with
it from a religious standpoint constitutes prohibited viewpoint
discrimination. Here, as in that case, the State's actions are
properly interpreted as unconstitutional viewpoint discrimination
rather than permissible line-drawing based on content: By the very
terms of the SAF prohibition, the University does not exclude
religion as a subject matter, but selects for disfavored treatment
those student journalistic efforts with religious editorial
viewpoints. Pp. 828-832.
(b) The University's attempt to escape the consequences of
Lamb's Chapel by urging that this case involves the
provision of funds rather than access to facilities is unavailing.
Although it may regulate the content of expression when it is the
speaker or when it enlists private entities to convey its own
message,
Rust v.
Sullivan, 500 U. S. 173;
Widmar v.
Vincent, 454 U. S. 263, 276, the
University may not discriminate based on the viewpoint of private
persons whose speech it subsidizes,
Regan v.
Taxation
with Representation of Wash., 461 U. S. 540, 548. Its
argument that the scarcity of public money may justify otherwise
impermissible viewpoint discrimination among private speakers is
simply wrong. Pp. 832-835.
(c) Vital First Amendment speech principles are at stake
here.
The Guideline at issue has a vast potential reach: The term
"promotes" as used there would comprehend any writing advocating a
philosophic position that rests upon a belief (or nonbelief) in a
deity or ultimate reality, while the term "manifests" would bring
within the prohibition any writing resting upon a premise
presupposing the existence (or nonexistence) of a deity or ultimate
reality. It is difficult to name renowned thinkers whose writings
would be accepted, save perhaps for articles disclaiming all
connection to their ultimate philosophy. pp.835-837.
2. The violation following from the University's denial of SAF
support to petitioners is not excused by the necessity of complying
with the Establishment Clause. Pp. 837-846.
(a) The governmental program at issue is neutral toward
religion.
Such neutrality is a significant factor in upholding programs in
the face of Establishment Clause attack, and the guarantee of
neutrality is not
821
offended where, as here, the government follows neutral criteria
and evenhanded policies to extend benefits to recipients whose
ideologies and viewpoints, including religious ones, are broad and
diverse,
Board of Ed. of Kiryas Joel Village School Dist. v.
Grumet, 512 U.
S. 687, 704. There is no suggestion that the University created
its program to advance religion or aid a religious cause. The SAF's
purpose is to open a forum for speech and to support various
student enterprises, including the publication of newspapers, in
recognition of the diversity and creativity of student life. The
SAF Guidelines have a separate classification for, and do not make
third-party payments on behalf of, "religious organizations," and
WAP did not seek a subsidy because of its Christian editorial
viewpoint; it sought funding under the Guidelines as a "student ...
communications ... grou[p]." Neutrality is also apparent in the
fact that the University has taken pains to disassociate itself
from the private speech involved in this case. The program's
neutrality distinguishes the student fees here from a tax levied
for the direct support of a church or group of churches, which
would violate the Establishment Clause. Pp. 837-842.
(b) This case is not controlled by the principle that special
Establishment Clause dangers exist where the government makes
direct money payments to sectarian institutions, see,
e. g.,
Roemer v.
Board of Public Works of Md., 426 U. S. 736, 747, since
it is undisputed that no public funds flow directly into WAP's
coffers under the program at issue. A public university does not
violate the Establishment Clause when it grants access to its
facilities on a religion-neutral basis to a wide spectrum of
student groups, even if some of those groups would use the
facilities for devotional exercises. See
e. g., Widmar, 454
U. S., at 269. This is so even where the upkeep, maintenance, and
repair of those facilities are paid out of a student activities
fund to which students are required to contribute.
Id., at
265. There is no difference in logic or principle, and certainly no
difference of constitutional significance, between using such funds
to operate a facility to which students have access, and paying a
third-party contractor to operate the facility on its behalf. That
is all that is involved here: The University provides printing
services to a broad spectrum of student newspapers. Were the
contrary view to become law, the University could only avoid a
constitutional violation by scrutinizing the content of student
speech, lest it contain too great a religious message. Such
censorship would be far more inconsistent with the Establishment
Clause's dictates than would governmental provision of secular
printing services on a religion-blind basis. Pp. 842-846.
18 F.3d
269, reversed.
822
KENNEDY, J., delivered the opinion of the Court, in which
REHNQUIST, C. J., and O'CONNOR, SCALIA, and THOMAS, JJ., joined.
O'CONNOR, J.,
post, p. 846, and THOMAS, J.,
post, p.
852, filed concurring opinions. SouTER, J., filed a dissenting
opinion, in which STEVENS, GINSBURG, and BREYER, JJ., joined,
post, p. 863.
Michael W McConnell argued the cause for petitioners.
With him on the briefs was
Michael P. McDonald.
John C.
Jeffries, Jr., argued the cause for
respondents.
With him on the brief was
James J.
Mingle.*
JUSTICE KENNEDY delivered the opinion of the Court. The
University of Virginia, an instrumentality of the Commonwealth for
which it is named and thus bound by the First and Fourteenth
Amendments, authorizes the payment of outside contractors for the
printing costs of a variety of student publications. It withheld
any authorization for payments on behalf of petitioners for the
sole reason that their student
*Briefs of
amici curiae urging reversal were filed for
the Commonwealth of Virginia by
James S.
Gilmore III,
Attorney General,
David E. Anderson, Chief Deputy Attorney
General,
William Henry Hurd, Deputy Attorney General, and
Alison Paige Landry, Assistant Attorney General; for the
American Center for Law and Justice by
Jay Alan Sekulow, James
Matthew Henderson, Sr., and
Keith A. Fournier; for the
Catholic League for Religious and Civil Rights by
Edward M.
Gaffney, Jr.; for the Christian Legal Society et al. by
Douglas Laycock, Steven T. McFarland, and
Samuel B.
Casey; and for the Intercollegiate Studies Institute by
Robert M. Rader and
Donn C.
Meindertsma.
Briefs of amici curiae urging affirmance were filed for the
American Civil Liberties Union et al. by Marjorie Heins, Steven R.
Shapiro, and Stephen B. Pershing; for Americans United for
Separation of Church and State et al. by Steven K. Green, Samuel
Rabinove, Jeffrey P. Sinensky, and Steven M. Freeman; for the
Baptist Joint Committee on Public Mfairs et al. by J. Brent Walker,
Oliver S. Thomas, Elliot M. Mincberg, Melissa Rogers, David
Saperstein, and Lois C. Waldman; for the Council on Religious
Freedom by Lee Boothby, Walter E. Carson, Robert W Nixon, and
Rolland Truman; for the National School Boards Association by
Gwendolyn H. Gregory, August W Steinhilber, and Thomas A. Shannon;
for the Pacific Legal Foundation by Anthony T. Caso and Deborah J.
La Fetra; and for the Student Press Law Center by S. Mark
Goodman.
823
paper "primarily promotes or manifests a particular belie[f] in
or about a deity or an ultimate reality." That the paper did
promote or manifest views within the defined exclusion seems plain
enough. The challenge is to the University's regulation and its
denial of authorization, the case raising issues under the Speech
and Establishment Clauses of the First Amendment.
I
The public corporation we refer to as the "University" is
denominated by state law as "the Rector and Visitors of the
University of Virginia," Va. Code Ann. § 23-69 (1993), and it is
responsible for governing the school, see §§ 23-69 to 23-80.
Founded by Thomas Jefferson in 1819, and ranked by him, together
with the authorship of the Declaration of Independence and of the
Virginia Act for Religious Freedom, Va. Code Ann. §57-1 (1950), as
one of his proudest achievements, the University is among the
Nation's oldest and most respected seats of higher learning. It has
more than 11,000 undergraduate students, and 6,000 graduate and
professional students. An understanding of the case requires a
somewhat detailed description of the program the University created
to support extracurricular student activities on its campus.
Before a student group is eligible to submit bills from its
outside contractors for payment by the fund described below, it
must become a "Contracted Independent Organization" (CIO). CIO
status is available to any group the majority of whose members are
students, whose managing officers are full-time students, and that
complies with certain procedural requirements. App. to Pet. for
Cert. 2a. A CIO must file its constitution with the University;
must pledge not to discriminate in its membership; and must include
in dealings with third parties and in all written materials a
disclaimer, stating that the CIO is independent of the University
and that the University is not responsible for the CIO. App. 27-28.
CIO's enjoy access to University facilities, including meeting
rooms and computer terminals.
Id., at 30.
824
A standard agreement signed between each CIO and the University
provides that the benefits and opportunities afforded to CIO's
"should not be misinterpreted as meaning that those organizations
are part of or controlled by the University, that the University is
responsible for the organizations' contracts or other acts or
omissions, or that the University approves of the organizations'
goals or activities."
Id., at 26.
All CIO's may exist and operate at the University, but some are
also entitled to apply for funds from the Student Activities Fund
(SAF). Established and governed by University Guidelines, the
purpose of the SAF is to support a broad range of extracurricular
student activities that "are related to the educational purpose of
the University." App. to Pet. for Cert. 61a. The SAF is based on
the University's "recogni[tion] that the availability of a wide
range of opportunities" for its students "tends to enhance the
University environment." App. 26. The Guidelines require that it be
administered "in a manner consistent with the educational purpose
of the University as well as with state and federal law." App. to
Pet. for Cert. 61a. The SAF receives its money from a mandatory fee
of $14 per semester assessed to each full-time student. The Student
Council, elected by the students, has the initial authority to
disburse the funds, but its actions are subject to review by a
faculty body chaired by a designee of the Vice President for
Student Affairs. Cf. id., at 63a-64a.
Some, but not all, CIO's may submit disbursement requests to the
SAF. The Guidelines recognize 11 categories of student groups that
may seek payment to third-party contractors because they "are
related to the educational purpose of the University of Virginia."
Id., at 61a-62a. One of these is "student news, information,
opinion, entertainment, or academic communications media groups."
Id., at 61a. The Guidelines also specify, however, that the
costs of certain activities of CIO's that are otherwise eligible
for funding
825
will not be reimbursed by the SAF. The student activities that
are excluded from SAF support are religious activities,
philanthropic contributions and activities, political activities,
activities that would jeopardize the University's tax-exempt
status, those which involve payment of honoraria or similar fees,
or social entertainment or related expenses.
Id., at
62a-63a. The prohibition on "political activities" is defined so
that it is limited to electioneering and lobbying. The Guidelines
provide that "[t]hese restrictions on funding political activities
are not intended to preclude funding of any otherwise eligible
student organization which ... espouses particular positions or
ideological viewpoints, including those that may be unpopular or
are not generally accepted."
Id., at 65a-66a. A "religious
activity," by contrast, is defined as any activity that "primarily
promotes or manifests a particular belie[f] in or about a deity or
an ultimate reality."
Id., at 66a.
The Guidelines prescribe these criteria for determining the
amounts of third-party disbursements that will be allowed on behalf
of each eligible student organization: the size of the group, its
financial self-sufficiency, and the Universitywide benefit of its
activities. If an organization seeks SAF support, it must submit
its bills to the Student Council, which pays the organization's
creditors upon determining that the expenses are appropriate. No
direct payments are made to the student groups. During the
1990-1991 academic year, 343 student groups qualified as CIa's. One
hundred thirty-five of them applied for support from the SAF, and
118 received funding. Fifteen of the groups were funded as "student
news, information, opinion, entertainment, or academic
communications media groups."
Petitioners' organization, Wide Awake Productions (WAP),
qualified as a CIa. Formed by petitioner Ronald Rosenberger and
other undergraduates in 1990, W AP was established "[t]o publish a
magazine of philosophical and religious expression," "[t]o
facilitate discussion which fosters an at-
826
mosphere of sensitivity to and tolerance of Christian
viewpoints," and "[t]o provide a unifying focus for Christians of
multicultural backgrounds." App. 67. WAP publishes Wide Awake: A
Christian Perspective at the University of Virginia. The paper's
Christian viewpoint was evident from the first issue, in which its
editors wrote that the journal "offers a Christian perspective on
both personal and community issues, especially those relevant to
college students at the University of Virginia." App. 45. The
editors committed the paper to a two-fold mission: "to challenge
Christians to live, in word and deed, according to the faith they
proclaim and to encourage students to consider what a personal
relationship with Jesus Christ means."
Ibid. The first issue
had articles about racism, crisis pregnancy, stress, prayer, C. S.
Lewis' ideas about evil and free will, and reviews of religious
music. In the next two issues, Wide Awake featured stories about
homosexuality, Christian missionary work, and eating disorders, as
well as music reviews and interviews with University professors.
Each page of Wide Awake, and the end of each article or review, is
marked by a cross. The advertisements carried in Wide Awake also
reveal the Christian perspective of the journal. For the most part,
the advertisers are churches, centers for Christian study, or
Christian bookstores. By June 1992, W AP had distributed about
5,000 copies of Wide Awake to University students, free of
charge.
WAP had acquired CIO status soon after it was organized.
This is an important consideration in this case, for had it been
a "religious organization," WAP would not have been accorded CIO
status. As defined by the Guidelines, a "[r]eligious
[o]rganization" is "an organization whose purpose is to practice a
devotion to an acknowledged ultimate reality or deity." App. to
Pet. for Cert. 66a. At no stage in this controversy has the
University contended that WAP is such an organization.
827
A few months after being given CIO status, WAP requested the SAF
to pay its printer $5,862 for the costs of printing its newspaper.
The Appropriations Committee of the Student Council denied W AP's
request on the ground that Wide Awake was a "religious activity"
within the meaning of the Guidelines, i.
e., that the
newspaper "promote[d] or manifest[ed] a particular belie[f] in or
about a deity or an ultimate reality."
Ibid. It made its
determination after examining the first issue. App. 54. W AP
appealed the denial to the full Student Council, contending that W
AP met all the applicable Guidelines and that denial of SAF support
on the basis of the magazine's religious perspective violated the
Constitution. The appeal was denied without further comment, and W
AP appealed to the next level, the Student Activities Committee. In
a letter signed by the Dean of Students, the committee sustained
the denial of funding. App.55.
Having no further recourse within the University structure, W
AP, Wide Awake, and three of its editors and members filed suit in
the United States District Court for the Western District of
Virginia, challenging the SAF's action as violative of Rev. Stat. §
1979, 42 U. S. C. § 1983. They alleged that refusal to authorize
payment of the printing costs of the publication, solely on the
basis of its religious editorial viewpoint, violated their rights
to freedom of speech and press, to the free exercise of religion,
and to equal protection of the law. They relied also upon Article I
of the Virginia Constitution and the Virginia Act for Religious
Freedom, Va. Code Ann. §§57-1, 57-2 (1986 and Supp. 1994), but did
not pursue those theories on appeal. The suit sought damages for
the costs of printing the paper, injunctive and declaratory relief,
and attorney's fees.
On cross-motions for summary judgment, the District Court ruled
for the University, holding that denial of SAF support was not an
impermissible content or viewpoint dis-
828
crimination against petitioners' speech, and that the
University's Establishment Clause concern over its "religious
activities" was a sufficient justification for denying payment to
third-party contractors. The court did not issue a definitive
ruling on whether reimbursement, had it been made here, would or
would not have violated the Establishment Clause. 795 F. Supp. 175,
181-182 (WD Va. 1992).
The United States Court of Appeals for the Fourth Circuit, in
disagreement with the District Court, held that the Guidelines did
discriminate on the basis of content. It ruled that, while the
State need not underwrite speech, there was a presumptive violation
of the Speech Clause when viewpoint discrimination was invoked to
deny third-party payment otherwise available to CIa's.
18 F.3d
269, 279-281 (1994). The Court of Appeals affirmed the judgment
of the District Court nonetheless, concluding that the
discrimination by the University was justified by the "compelling
interest in maintaining strict separation of church and state."
Id., at 281. We granted certiorari. 513 U. S. 959
(1994).
II
It is axiomatic that the government may not regulate speech
based on its substantive content or the message it conveys.
Police Dept. of Chicago v.
Mosley, 408 U. S. 92, 96 (1972).
Other principles follow from this precept. In the realm of private
speech or expression, government regulation may not favor one
speaker over another.
Members of City Council of Los Angeles
v.
Taxpayers for Vincent, 466 U. S. 789,804 (1984).
Discrimination against speech because of its message is presumed to
be unconstitutional. See
Turner Broadcasting System, Inc. v.
FCC, 512 U. S.
622, 641-643 (1994). These rules informed our determination
that the government offends the First Amendment when it imposes
financial burdens on certain speakers based on the content of their
expression.
Simon &
Schuster, Inc. v.
Members
of N.
Y. State Crime Victims Bd., 502 U. S. 105,
829
115 (1991). When the government targets not subject matter, but
particular views taken by speakers on a subject, the violation of
the First Amendment is all the more blatant. See
R. A. v: v.
St. Paul, 505
U. S. 377, 391 (1992). Viewpoint discrimination is thus an
egregious form of content discrimination. The government must
abstain from regulating speech when the specific motivating
ideology or the opinion or perspective of the speaker is the
rationale for the restriction. See
Perry Ed. Assn. v.
Perry Local Educators' Assn., 460 U. S. 37, 46
(1983).
These principles provide the framework forbidding the State to
exercise viewpoint discrimination, even when the limited public
forum is one of its own creation. In a case involving a school
district's provision of school facilities for private uses, we
declared that "[t]here is no question that the District, like the
private owner of property, may legally preserve the property under
its control for the use to which it is dedicated."
Lamb's
Chapel v.
Center Moriches Union Free School Dist.,
508 U. S. 384,
390 (1993). The necessities of confining a forum to the limited and
legitimate purposes for which it was created may justify the State
in reserving it for certain groups or for the discussion of certain
topics. See,
e. g., Cornelius v.
NAACP Legal Defense
&
Ed. Fund, Inc., 473 U. S. 788,806 (1985);
Perry Ed. Assn., supra, at 49. Once it has opened a limited
forum, however, the State must respect the lawful boundaries it has
itself set. The State may not exclude speech where its distinction
is not "reasonable in light of the purpose served by the forum,"
Cornelius, supra, at 804-806; see also
Perry Ed. Assn.,
supra, at 46, 49, nor may it discriminate against speech on the
basis of its viewpoint,
Lamb's Chapel, supra, at 392-393;
see also
Perry Ed. Assn., supra, at 46;
R. A. V:,
supra, at 386-388, 391-393; cf.
Texas v.
Johnson, 491
U. S. 397, 414-415 (1989). Thus, in determining whether the
State is acting to preserve the limits of the forum it has created
so that the exclusion of a class of speech is legitimate, we have
observed a distinction be-
830
tween, on the one hand, content discrimination, which may be
permissible if it preserves the purposes of that limited forum,
and, on the other hand, viewpoint discrimination, which is presumed
impermissible when directed against speech otherwise within the
forum's limitations. See
Perry Ed. Assn., supra, at 46.
The SAF is a forum more in a metaphysical than in a spatial or
geographic sense, but the same principles are applicable. See,
e. g., Perry Ed. Assn., supra, at 46-47 (forum analysis of a
school mail system);
Cornelius, supra, at 801 (forum
analysis of charitable contribution program). The most recent and
most apposite case is our decision in
Lamb's Chapel, supra.
There, a school district had opened school facilities for use after
school hours by community groups for a wide variety of social,
civic, and recreational purposes. The district, however, had
enacted a formal policy against opening facilities to groups for
religious purposes. Invoking its policy, the district rejected a
request from a group desiring to show a film series addressing
various child-rearing questions from a "Christian perspective."
There was no indication in the record in
Lamb's Chapel that
the request to use the school facilities was "denied, for any
reason other than the fact that the presentation would have been
from a religious perspective." 508 U. S., at 393-394. Our
conclusion was unanimous: "[I]t discriminates on the basis of
viewpoint to permit school property to be used for the presentation
of all views about family issues and child rearing except those
dealing with the subject matter from a religious standpoint."
Id., at 393.
The University does acknowledge (as it must in light of our
precedents) that "ideologically driven attempts to suppress a
particular point of view are presumptively unconstitutional in
funding, as in other contexts," but insists that this case does not
present that issue because the Guidelines draw lines based on
content, not viewpoint. Brief for Respondents 17, n. 10. As we have
noted, discrimination against one set of
831
views or ideas is but a subset or particular instance of the
more general phenomenon of content discrimination. See,
e.
g.,
R. A. V:,
supra, at 391. And, it must be
acknowledged, the distinction is not a precise one. It is, in a
sense, something of an understatement to speak of religious thought
and discussion as just a viewpoint, as distinct from a
comprehensive body of thought. The nature of our origins and
destiny and their dependence upon the existence of a divine being
have been subjects of philosophic inquiry throughout human history.
We conclude, nonetheless, that here, as in
Lamb's Chapel,
viewpoint discrimination is the proper way to interpret the
University's objections to Wide Awake. By the very terms of the SAF
prohibition, the University does not exclude religion as a subject
matter but selects for disfavored treatment those student
journalistic efforts with religious editorial viewpoints. Religion
may be a vast area of inquiry, but it also provides, as it did
here, a specific premise, a perspective, a standpoint from which a
variety of subjects may be discussed and considered. The prohibited
perspective, not the general subject matter, resulted in the
refusal to make third-party payments, for the subjects discussed
were otherwise within the approved category of publications.
The dissent's assertion that no viewpoint discrimination occurs
because the Guidelines discriminate against an entire class of
viewpoints reflects an insupportable assumption that all debate is
bipolar and that antireligious speech is the only response to
religious speech. Our understanding of the complex and multifaceted
nature of public discourse has not embraced such a contrived
description of the marketplace of ideas. If the topic of debate is,
for example, racism, then exclusion of several views on that
problem is just as offensive to the First Amendment as exclusion of
only one. It is as objectionable to exclude both a theistic and an
atheistic perspective on the debate as it is to exclude one, the
other, or yet another political, economic, or social viewpoint. The
dissent's declaration that debate is not skewed so long as
multi-
832
pIe voices are silenced is simply wrong; the debate is skewed in
multiple ways.
The University's denial of WAP's request for third-party
payments in the present case is based upon viewpoint discrimination
not unlike the discrimination the school district relied upon in
Lamb's Chapel and that we found invalid. The church group in
Lamb's Chapel would have been qualified as a social or civic
organization, save for its religious purposes. Furthermore, just as
the school district in
Lamb's Chapel pointed to nothing but
the religious views of the group as the rationale for excluding its
message, so in this case the University justifies its denial of SAF
participation to W AP on the ground that the contents of Wide Awake
reveal an avowed religious perspective. See
supra, at 827.
It bears only passing mention that the dissent's attempt to
distinguish
Lamb's Chapel is entirely without support in the
law. Relying on the transcript of oral argument, the dissent seems
to argue that we found viewpoint discrimination in that case
because the government excluded Christian, but not atheistic,
viewpoints from being expressed in the forum there.
Post, at
897-898, and n. 13. The Court relied on no such distinction in
holding that discriminating against religious speech was
discriminating on the basis of viewpoint. There is no indication in
the opinion of the Court (which, unlike an advocate's statements at
oral argument, is the law) that exclusion or inclusion of other
religious or antireligious voices from that forum had any bearing
on its decision.
The University tries to escape the consequences of our holding
in
Lamb's Chapel by urging that this case involves the
provision of funds rather than access to facilities. The University
begins with the unremarkable proposition that the State must have
substantial discretion in determining how to allocate scarce
resources to accomplish its educational mission. Citing our
decisions in
Rust v.
Sullivan, 500 U. S. 173 (1991),
Regan v.
Taxation with Representation of Wash.,
461 U. S. 540
(1983), and
Widmar v.
Vincent, 454 U. S. 263
833
(1981), the University argues that content-based funding
decisions are both inevitable and lawful. Were the reasoning of
Lamb's Chapel to apply to funding decisions as well as to
those involving access to facilities, it is urged, its holding
"would become a judicial juggernaut, constitutionalizing the
ubiquitous content-based decisions that schools, colleges, and
other government entities routinely make in the allocation of
public funds." Brief for Respondents 16.
To this end the University relies on our assurance in
Widmar v.
Vincent, supra. There, in the course of
striking down a public university's exclusion of religious groups
from use of school facilities made available to all other student
groups, we stated: "Nor do we question the right of the University
to make academic judgments as to how best to allocate scarce
resources." 454 U. S., at 276. The quoted language in
Widmar
was but a proper recognition of the principle that when the State
is the speaker, it may make content-based choices. When the
University determines the content of the education it provides, it
is the University speaking, and we have permitted the government to
regulate the content of what is or is not expressed when it is the
speaker or when it enlists private entities to convey its own
message. In the same vein, in
Rust v.
Sullivan,
supra, we upheld the government's prohibition on
abortion-related advice applicable to recipients of federal funds
for family planning counseling. There, the government did not
create a program to encourage private speech but instead used
private speakers to transmit specific information pertaining to its
own program. We recognized that when the government appropriates
public funds to promote a particular policy of its own it is
entitled to say what it wishes. 500 U. S., at 194. When the
government disburses public funds to private entities to convey a
governmental message, it may take legitimate and appropriate steps
to ensure that its message is neither garbled nor distorted by the
grantee. See id., at 196-200.
834
It does not follow, however, and we did not suggest in
Widmar, that viewpoint-based restrictions are proper when
the University does not itself speak or subsidize transmittal of a
message it favors but instead expends funds to encourage a
diversity of views from private speakers. A holding that the
University may not discriminate based on the viewpoint of private
persons whose speech it facilitates does not restrict the
University's own speech, which is controlled by different
principles. See,
e. g., Board of Ed. of Westside Community
Schools (Dist. 66) v.
Mergens, 496 U. S. 226, 250
(1990);
Hazelwood School Dist. v.
Kuhlmeier, 484 U. S. 260, 270-272
(1988). For that reason, the University's reliance on
Regan
v.
Taxation with Representation of Wash., supra, is
inapposite as well.
Regan involved a challenge to Congress'
choice to grant tax deductions for contributions made to veterans'
groups engaged in lobbying, while denying that favorable status to
other charities which pursued lobbying efforts. Although
acknowledging that the Government is not required to subsidize the
exercise of fundamental rights, see 461 U. S., at 545-546, we
reaffirmed the requirement of viewpoint neutrality in the
Government's provision of financial benefits by observing that
"[t]he case would be different if Congress were to discriminate
invidiously in its subsidies in such a way as to 'ai[m] at the
suppression of dangerous ideas,'" see
id., at 548 (quoting
Cammarano v.
United States, 358 U. S. 498, 513
(1959), in turn quoting
Speiser v.
Randall, 357 U. S. 513, 519
(1958)).
Regan relied on a distinction based on preferential
treatment of certain speakers-veterans' organizations-and not a
distinction based on the content or messages of those groups'
speech. 461 U. S., at 548; cf.
Perry Ed. Assn., 460 U. S.,
at 49. The University's regulation now before us, however, has a
speech-based restriction as its sole rationale and operative
principle.
The distinction between the University's own favored message and
the private speech of students is evident in the case before us.
The University itself has taken steps to ensure
835
the distinction in the agreement each CIO must sign. See
supra, at 824. The University declares that the student
groups eligible for SAF support are not the University's agents,
are not subject to its control, and are not its responsibility.
Having offered to pay the third-party contractors on behalf of
private speakers who convey their own messages, the University may
not silence the expression of selected viewpoints.
The University urges that, from a constitutional standpoint,
funding of speech differs from provision of access to facilities
because money is scarce and physical facilities are not. Beyond the
fact that in any given case this proposition might not be true as
an empirical matter, the underlying premise that the University
could discriminate based on viewpoint if demand for space exceeded
its availability is wrong as well. The government cannot justify
viewpoint discrimination among private speakers on the economic
fact of scarcity. Had the meeting rooms in
Lamb's Chapel
been scarce, had the demand been greater than the supply, our
decision would have been no different. It would have been incumbent
on the State, of course, to ration or allocate the scarce resources
on some acceptable neutral principle; but nothing in our decision
indicated that scarcity would give the State the right to exercise
viewpoint discrimination that is otherwise impermissible.
Vital First Amendment speech principles are at stake here. The
first danger to liberty lies in granting the State the power to
examine publications to determine whether or not they are based on
some ultimate idea and, if so, for the State to classify them. The
second, and corollary, danger is to speech from the chilling of
individual thought and expression. That danger is especially real
in the University setting, where the State acts against a
background and tradition of thought and experiment that is at the
center of our intellectual and philosophic tradition. See
Healy v.
James, 408 U. S. 169, 180-181 (1972);
Keyishian v.
Board of Regents of
836
Univ. of State of N.
Y., 385 U. S. 589, 603
(1967);
Sweezy v.
New Hampshire, 354 U. S. 234, 250
(1957). In ancient Athens, and, as Europe entered into a new period
of intellectual awakening, in places like Bologna, Oxford, and
Paris, universities began as voluntary and spontaneous assemblages
or concourses for students to speak and to write and to learn. See
generally R. Palmer & J. Colton, A History of the Modern World
39 (7th ed. 1992). The quality and creative power of student
intellectual life to this day remains a vital measure of a school's
influence and attainment. For the University, by regulation, to
cast disapproval on particular viewpoints of its students risks the
suppression of free speech and creative inquiry in one of the vital
centers for the Nation's intellectual life, its college and
university campuses.
The Guideline invoked by the University to deny thirdparty
contractor payments on behalf of W AP effects a sweeping
restriction on student thought and student inquiry in the context
of University sponsored publications. The prohibition on funding on
behalf of publications that "primarily promot[e] or manifes[t] a
particular belie[f] in or about a deity or an ultimate reality," in
its ordinary and commonsense meaning, has a vast potential reach.
The term "promotes" as used here would comprehend any writing
advocating a philosophic position that rests upon a belief in a
deity or ultimate reality. See Webster's Third New International
Dictionary 1815 (1961) (defining "promote" as "to contribute to the
growth, enlargement, or prosperity of: further, encourage"). And
the term "manifests" would bring within the scope of the
prohibition any writing that is explicable as resting upon a
premise that presupposes the existence of a deity or ultimate
reality. See id., at 1375 (defining "manifest" as "to show plainly:
make palpably evident or certain by showing or displaying"). Were
the prohibition applied with much vigor at all, it would bar
funding of essays by hypothetical student contributors named Plato,
Spinoza, and Descartes. And if the regulation covers, as the
University
837
says it does, see Tr. of Oral Arg. 18-19, those student
journalistic efforts that primarily manifest or promote a belief
that there is no deity and no ultimate reality, then undergraduates
named Karl Marx, Bertrand Russell, and JeanPaul Sartre would
likewise have some of their major essays excluded from student
publications. If any manifestation of beliefs in first principles
disqualifies the writing, as seems to be the case, it is indeed
difficult to name renowned thinkers whose writings would be
accepted, save perhaps for articles disclaiming all connection to
their ultimate philosophy. Plato could contrive perhaps to submit
an acceptable essay on making pasta or peanut butter cookies,
provided he did not point out their (necessary) imperfections.
Based on the principles we have discussed, we hold that the
regulation invoked to deny SAF support, both in its terms and in
its application to these petitioners, is a denial of their right of
free speech guaranteed by the First Amendment. It remains to be
considered whether the violation following from the University's
action is excused by the necessity of complying with the
Constitution's prohibition against state establishment of religion.
We turn to that question.
III
Before its brief on the merits in this Court, the University had
argued at all stages of the litigation that inclusion of W AP's
contractors in SAF funding authorization would violate the
Establishment Clause. Indeed, that is the ground on which the
University prevailed in the Court of Appeals. We granted certiorari
on this question: "Whether the Establishment Clause compels a state
university to exclude an otherwise eligible student publication
from participation in the student activities fund, solely on the
basis of its religious viewpoint, where such exclusion would
violate the Speech and Press Clauses if the viewpoint of the
publication were nonreligious." Pet. for Cert. i. The University
now seems to have abandoned this position, contending that "[t]he
fun-
838
damental objection to petitioners' argument is not that it
implicates the Establishment Clause but that it would defeat the
ability of public education at all levels to control the use of
public funds." Brief for Respondents 29; see id., at 27-29, and n.
17; Tr. of Oral Arg. 14. That the University itself no longer
presses the Establishment Clause claim is some indication that it
lacks force; but as the Court of Appeals rested its judgment on the
point and our dissenting colleagues would find it determinative, it
must be addressed.
The Court of Appeals ruled that withholding SAF support from
Wide Awake contravened the Speech Clause of the First Amendment,
but proceeded to hold that the University's action was justified by
the necessity of avoiding a violation of the Establishment Clause,
an interest it found compelling. 18 F. 3d, at 281. Recognizing that
this Court has regularly "sanctioned awards of direct nonmonetary
benefits to religious groups where government has created open fora
to which all similarly situated organizations are invited," id., at
286 (citing Widmar, 454 U. S., at 277), the Fourth Circuit asserted
that direct monetary subsidization of religious organizations and
projects is "a beast of an entirely different color," 18 F. 3d, at
286. The court declared that the Establishment Clause would not
permit the use of public funds to support" 'a specifically
religious activity in an otherwise substantially secular setting.'"
Id., at 285 (quoting Hunt v. McNair,
413 U. S. 734, 743 (1973)
(emphasis deleted)). It reasoned that because Wide Awake is "a
journal pervasively devoted to the discussion and advancement of an
avowedly Christian theological and personal philosophy," the
University's provision of SAF funds for its publication would "send
an unmistakably clear signal that the University of Virginia
supports Christian values and wishes to promote the wide
promulgation of such values." 18 F. 3d, at 286.
If there is to be assurance that the Establishment Clause
retains its force in guarding against those governmental actions it
was intended to prohibit, we must in each case in-
839
quire first into the purpose and object of the governmental
action in question and then into the practical details of the
program's operation. Before turning to these matters, however, we
can set forth certain general principles that must bear upon our
determination.
A central lesson of our decisions is that a significant factor
in upholding governmental programs in the face of Establishment
Clause attack is their neutrality towards religion. We have decided
a series of cases addressing the receipt of government benefits
where religion or religious views are implicated in some degree.
The first case in our modern Establishment Clause jurisprudence was
Everson v.
Board of Ed. of Ewing, 330 U. S. 1 (1947). There
we cautioned that in enforcing the prohibition against laws
respecting establishment of religion, we must "be sure that we do
not inadvertently prohibit [the government] from extending its
general state law benefits to all its citizens without regard to
their religious belief."
Id., at 16. We have held that the
guarantee of neutrality is respected, not offended, when the
government, following neutral criteria and evenhanded policies,
extends benefits to recipients whose ideologies and viewpoints,
including religious ones, are broad and diverse. See
Board of
Ed. of Kiryas Joel Village School Dist. v.
Grumet,
512 U. S. 687,
704 (1994) (SOUTER, J.) ("[T]he principle is well grounded in our
case law [and] we have frequently relied explicitly on the general
availability of any benefit provided religious groups or
individuals in turning aside Establishment Clause challenges");
Witters v.
Washington Dept. of Servs. for Blind,
474 U. S. 481,
487-488 (1986);
Mueller v.
Allen, 463 U. S. 388, 398-399
(1983);
Widmar, supra, at 274275. More than once have we
rejected the position that the Establishment Clause even justifies,
much less requires, a refusal to extend free speech rights to
religious speakers who participate in broad-reaching government
programs neutral in design. See
Lamb's Chapel, 508 U. S., at
393-394;
Mergens, 496 U. S., at 248,252;
Widmar,
supra, at 274-275.
840
The governmental program here is neutral toward religion. There
is no suggestion that the University created it to advance religion
or adopted some ingenious device with the purpose of aiding a
religious cause. The object of the SAF is to open a forum for
speech and to support various student enterprises, including the
publication of newspapers, in recognition of the diversity and
creativity of student life. The University's SAF Guidelines have a
separate classification for, and do not make third-party payments
on behalf of, "religious organizations," which are those "whose
purpose is to practice a devotion to an acknowledged ultimate
reality or deity." Pet. for Cert. 66a. The category of support here
is for "student news, information, opinion, entertainment, or
academic communications media groups," of which Wide Awake was 1 of
15 in the 1990 school year. W AP did not seek a subsidy because of
its Christian editorial viewpoint; it sought funding as a student
journal, which it was.
The neutrality of the program distinguishes the student fees
from a tax levied for the direct support of a church or group of
churches. A tax of that sort, of course, would run contrary to
Establishment Clause concerns dating from the earliest days of the
Republic. The apprehensions of our predecessors involved the
levying of taxes upon the public for the sole and exclusive purpose
of establishing and supporting specific sects. The exaction here,
by contrast, is a student activity fee designed to reflect the
reality that student life in its many dimensions includes the
necessity of wide-ranging speech and inquiry and that student
expression is an integral part of the University's educational
mission. The fee is mandatory, and we do not have before us the
question whether an objecting student has the First Amendment right
to demand a pro rata return to the extent the fee is expended for
speech to which he or she does not subscribe. See
Keller v.
State Bar of Gal., 496 U. S. 1, 15-16 (1990);
Abood v.
Detroit Bd. of Ed., 431 U. S. 209, 235-236
(1977). We must treat it, then, as an exaction upon the
students.
841
But the $14 paid each semester by the students is not a general
tax designed to raise revenue for the University. See
United
States v.
Butler, 297 U. S. 1, 61 (1936) ("A
tax, in the general understanding of the term, and as used in the
Constitution, signifies an exaction for the support of the
Government"); see also
Head Money Cases, 112 U. S. 580, 595596
(1884). The SAF cannot be used for unlimited purposes, much less
the illegitimate purpose of supporting one religion. Much like the
arrangement in
Widmar, the money goes to a special fund from
which any group of students with CIO status can draw for purposes
consistent with the University's educational mission; and to the
extent the student is interested in speech, withdrawal is permitted
to cover the whole spectrum of speech, whether it manifests a
religious view, an antireligious view, or neither. Our decision,
then, cannot be read as addressing an expenditure from a general
tax fund. Here, the disbursements from the fund go to private
contractors for the cost of printing that which is protected under
the Speech Clause of the First Amendment. This is a far cry from a
general public assessment designed and effected to provide
financial support for a church.
Government neutrality is apparent in the State's overall scheme
in a further meaningful respect. The program respects the critical
difference "between
government speech endorsing religion,
which the Establishment Clause forbids, and
private speech
endorsing religion, which the Free Speech and Free Exercise Clauses
protect."
Mergens, supra, at 250 (opinion of O'CONNOR, J.).
In this case, "the government has not fostered or encouraged" any
mistaken impression that the student newspapers speak for the
University.
Capitol Square Review and Advisory Bd. v.
Pinette, ante, at 766. The University has taken pains to
disassociate itself from the private speech involved in this case.
The Court of Appeals' apparent concern that Wide Awake's religious
orientation would be attributed to the University is not a
plausible fear, and there is no real likelihood that the
842
speech in question is being either endorsed or coerced by the
State, see
Lee v.
Weisman, 505 U. S. 577, 587
(1992);
Witters, supra, at 489 (citing
Lynch v.
Donnelly, 465
U. S. 668, 688 (1984) (O'CONNOR, J., concurring)); see also
Witters, supra, at 493 (O'CONNOR, J., concurring in part and
concurring in judgment) (citing
Lynch, supra, at 690
(O'CONNOR, J., concurring)) .
The Court of Appeals (and the dissent) are correct to extract
from our decisions the principle that we have recognized special
Establishment Clause dangers where the government makes direct
money payments to sectarian institutions, citing
Roemer v.
Board of Public Works of Md., 426 U. S. 736, 747
(1976);
Bowen v.
Kendrick, 487 U. S. 589, 614-615
(1988);
Hunt v.
McNair, 413 U. S., at 742;
Tilton v.
Richardson, 403 U. S. 672, 679-680
(1971);
Board of Ed. of Central School Dist. No.1 v.
Allen, 392 U.
S. 236 (1968). The error is not in identifying the principle,
but in believing that it controls this case. Even assuming that W
AP is no different from a church and that its speech is the same as
the religious exercises conducted in
Widmar (two points much
in doubt), the Court of Appeals decided a case that was, in
essence, not before it, and the dissent would have us do the same.
We do not confront a case where, even under a neutral program that
includes nonsectarian recipients, the government is making direct
money payments to an institution or group that is engaged in
religious activity. Neither the Court of Appeals nor the dissent,
we believe, takes sufficient cognizance of the undisputed fact that
no public funds flow directly to W AP's coffers.
It does not violate the Establishment Clause for a public
university to grant access to its facilities on a religionneutral
basis to a wide spectrum of student groups, including groups that
use meeting rooms for sectarian activities, accompanied by some
devotional exercises. See
Widmar, 454 U. S., at 269;
Mergens, 496 U. S., at 252. This is so even where the
upkeep, maintenance, and repair of the facilities
843
attributed to those uses are paid from a student activities fund
to which students are required to contribute.
Widmar, supra,
at 265. The government usually acts by spending money. Even the
provision of a meeting room, as in
Mergens and
Widmar, involved governmental expenditure, if only in the
form of electricity and heating or cooling costs. The error made by
the Court of Appeals, as well as by the dissent, lies in focusing
on the money that is undoubtedly expended by the government, rather
than on the nature of the benefit received by the recipient. If the
expenditure of governmental funds is prohibited whenever those
funds pay for a service that is, pursuant to a religion-neutral
program, used by a group for sectarian purposes, then
Widmar,
Mergens, and
Lamb's Chapel would have to be overruled.
Given our holdings in these cases, it follows that a public
university may maintain its own computer facility and give student
groups access to that facility, including the use of the printers,
on a religion neutral, say first-come-first-served, basis. If a
religious student organization obtained access on that
religion-neutral basis and used a computer to compose or a printer
or copy machine to print speech with a religious content or
viewpoint, the State's action in providing the group with access
would no more violate the Establishment Clause than would giving
those groups access to an assembly hall. See
Lamb's Chapel
v.
Center Moriches Union Free School Dist., 508 U. S. 384 (1993);
Widmar, supra; Mergens, supra. There is no difference in
logic or principle, and no difference of constitutional
significance, between a school using its funds to operate a
facility to which students have access, and a school paying a
third-party contractor to operate the facility on its behalf. The
latter occurs here. The University provides printing services to a
broad spectrum of student newspapers qualified as CIO's by reason
of their officers and membership. Any benefit to religion is
incidental to the government's provision of secular services for
secular
844
purposes on a religion-neutral basis. Printing is a routine,
secular, and recurring attribute of student life.
By paying outside printers, the University in fact attains a
further degree of separation from the student publication, for it
avoids the duties of supervision, escapes the costs of upkeep,
repair, and replacement attributable to student use, and has a
clear record of costs. As a result, and as in
Widmar, the
University can charge the SAF, and not the taxpayers as a whole,
for the discrete activity in question. It would be formalistic for
us to say that the University must forfeit these advantages and
provide the services itself in order to comply with the
Establishment Clause. It is, of course, true that if the State pays
a church's bills it is subsidizing it, and we must guard against
this abuse. That is not a danger here, based on the considerations
we have advanced and for the additional reason that the student
publication is not a religious institution, at least in the usual
sense of that term as used in our case law, and it is not a
religious organization as used in the University's own regulations.
It is instead a publication involved in a pure forum for the
expression of ideas, ideas that would be both incomplete and
chilled were the Constitution to be interpreted to require that
state officials and courts scan the publication to ferret out views
that principally manifest a belief in a divine being.
Were the dissent's view to become law, it would require the
University, in order to avoid a constitutional violation, to
scrutinize the content of student speech, lest the expression in
question-speech otherwise protected by the Constitution-contain too
great a religious content. The dissent, in fact, anticipates such
censorship as "crucial" in distinguishing between "works
characterized by the evangelism of Wide Awake and writing that
merely happens to express views that a given religion might
approve."
Post, at 896. That eventuality raises the specter
of governmental censorship, to ensure that all student writings and
publications meet some baseline standard of secular orthodoxy. To
impose that
845
standard on student speech at a university is to imperil the
very sources of free speech and expression. As we recognized in
Widmar, official censorship would be far more inconsistent
with the Establishment Clause's dictates than would governmental
provision of secular printing services on a religion-blind
basis.
"[T]he dissent fails to establish that the distinction [between
'religious' speech and speech 'about' religion] has intelligible
content. There is no indication when 'singing hymns, reading
scripture, and teaching biblical principles' cease to be 'singing,
teaching, and reading'-all apparently forms of 'speech,' despite
their religious subject matter-and become unprotected 'worship.'
... "[E]ven if the distinction drew an arguably principled line, it
is highly doubtful that it would lie within the judicial competence
to administer. Merely to draw the distinction would require the
university-and ultimately the courts-to inquire into the
significance of words and practices to different religious faiths,
and in varying circumstances by the same faith. Such inquiries
would tend inevitably to entangle the State with religion in a
manner forbidden by our cases. E. g., Walz v. Tax
Comm'n of City of New York, 397 U. S. 664 (1970)."
454 U. S., at 269-270, n. 6 (citations omitted).
***
To obey the Establishment Clause, it was not necessary for the
University to deny eligibility to student publications because of
their viewpoint. The neutrality commanded of the State by the
separate Clauses of the First Amendment was compromised by the
University's course of action. The viewpoint discrimination
inherent in the University's regulation required public officials
to scan and interpret student publications to discern their
underlying philosophic assumptions respecting religious theory and
belief. That course of action was a denial of the right of free
speech and would risk
846
fostering a pervasive bias or hostility to religion, which could
undermine the very neutrality the Establishment Clause requires.
There is no Establishment Clause violation in the University's
honoring its duties under the Free Speech Clause.
The judgment of the Court of Appeals must be, and is,
reversed.
It is so ordered.
JUSTICE O'CONNOR, concurring.
"We have time and again held that the government generally may
not treat people differently based on the God or gods they worship,
or do not worship."
Board of Ed. of Kiryas Joel Village School
Dist. v.
Grumet, 512 U. S. 687, 714 (1994)
(O'CONNOR, J., concurring in part and concurring in judgment). This
insistence on government neutrality toward religion explains why we
have held that schools may not discriminate against religious
groups by denying them equal access to facilities that the schools
make available to all. See
Lamb's Chapel v.
Center
Moriches Union Free School Dist., 508 U. S. 384 (1993);
Widmar v.
Vincent, 454 U. S. 263 (1981).
Withholding access would leave an impermissible perception that
religious activities are disfavored: "[T]he message is one of
neutrality rather than endorsement; if a State refused to let
religious groups use facilities open to others, then it would
demonstrate not neutrality but hostility toward religion."
Board
of Ed. of Westside Community Schools (Dist. 66) v.
Mergens, 496
U. S. 226, 248 (1990) (plurality opinion). "The Religion
Clauses prohibit the government from favoring religion, but they
provide no warrant for discriminating
against religion."
Kiryas Joel, supra, at 717 (O'CONNOR, J.). Neutrality, in
both form and effect, is one hallmark of the Establishment
Clause.
As JUSTICE SOUTER demonstrates, however,
post, at 868872
(dissenting opinion), there exists another axiom in the history and
precedent of the Establishment Clause. "Public
847
funds may not be used to endorse the religious message."
Bowen v.
Kendrick, 487 U. S. 589, 642 (1988)
(Blackmun, J., dissenting); see also id., at 622 (O'CONNOR, J.,
concurring). Our cases have permitted some government funding of
secular functions performed by sectarian organizations. See,
e. g.,
id., at 617 (funding for sex education);
Roemer v.
Board of Public Works of Md., 426 U. S. 736, 741 (1976)
(cash grant to colleges not to be used for "sectarian purposes");
Bradfield v.
Roberts, 175 U. S. 291, 299-300
(1899) (funding of health care for indigent patients). These
decisions, however, provide no precedent for the use of public
funds to finance religious activities.
This case lies at the intersection of the principle of
government neutrality and the prohibition on state funding of
religious activities. It is clear that the University has
established a generally applicable program to encourage the free
exchange of ideas by its students, an expressive marketplace that
includes some 15 student publications with predictably divergent
viewpoints. It is equally clear that petitioners' viewpoint is
religious and that publication of Wide Awake is a religious
activity, under both the University's regulation and a fair reading
of our precedents. Not to finance Wide Awake, according to
petitioners, violates the principle of neutrality by sending a
message of hostility toward religion. To finance Wide Awake, argues
the University, violates the prohibition on direct state funding of
religious activities.
When two bedrock principles so conflict, understandably neither
can provide the definitive answer. Reliance on categorical
platitudes is unavailing. Resolution instead depends on the hard
task of judging-sifting through the details and determining whether
the challenged program offends the Establishment Clause. Such
judgment requires courts to draw lines, sometimes quite fine, based
on the particular facts of each case. See
Lee v.
Weisman, 505
U. S. 577, 598 (1992) ("Our jurisprudence in this area is of
necessity one of line-drawing"). As Justice Holmes observed in a
different
848
context: "Neither are we troubled by the question where to draw
the line. That is the question in pretty much everything worth
arguing in the law. Day and night, youth and age are only types."
Irwin v.
Gavit, 268 U. S. 161, 168 (1925)
(citation omitted).
In
Witters v.
Washington Dept. of Servs. for
Blind, 474 U. S.
481 (1986), for example, we unanimously held that the State
may, through a generally applicable financial aid program, pay a
blind student's tuition at a sectarian theological institution. The
Court so held, however, only after emphasizing that "vocational
assistance provided under the Washington program is paid directly
to the student, who transmits it to the educational institution of
his or her choice."
Id., at 487. The benefit to religion
under the program, therefore, is akin to a public servant
contributing her government paycheck to the church.
Ibid. We
thus resolved the conflict between the neutrality principle and the
funding prohibition, not by permitting one to trump the other, but
by relying on the elements of choice peculiar to the facts of that
case: "The aid to religion at issue here is the result of
petitioner's private choice. No reasonable observer is likely to
draw from the facts before us an inference that the State itself is
endorsing a religious practice or belief."
Id., at 493
(O'CONNOR, J., concurring in part and concurring in judgment). See
also
Zobrest v.
Catalina Foothills School Dist.,
509 U. S. 1, 10-11
(1993).
The need for careful judgment and fine distinctions presents
itself even in extreme cases.
Everson v.
Board of Ed. of
Ewing, 330 U. S.
1 (1947), provided perhaps the strongest exposition of the
no-funding principle: "No tax in any amount, large or small, can be
levied to support any religious activities or institutions,
whatever they may be called, or whatever form they may adopt to
teach or practice religion."
Id., at 16. Yet the Court
approved the use of public funds, in a general program, to
reimburse parents for their children's bus fares to attend Catholic
schools.
Id., at 17-18.
849
Although some would cynically dismiss the Court's disposition as
inconsistent with its protestations, see id., at 19 (Jackson, J.,
dissenting) ("[T]he most fitting precedent is that of Julia who,
according to Byron's reports, 'whispering "I will ne'er
consent,"-consented"'), the decision reflected the need to rely on
careful judgment-not simple categories-when two principles, of
equal historical and jurisprudential pedigree, come into
unavoidable conflict.
So it is in this case. The nature of the dispute does not admit
of categorical answers, nor should any be inferred from the Court's
decision today, see
ante, at 838-839. Instead, certain
considerations specific to the program at issue lead me to conclude
that by providing the same assistance to Wide Awake that it does to
other publications, the University would not be endorsing the
magazine's religious perspective.
First, the student organizations, at the University's
insistence, remain strictly independent of the University. The
University's agreement with the Contracted Independent
Organizations (CIO)-i.
e., student groups-provides:
"The University is a Virginia public corporation and the CIO is
not part of that corporation, but rather exists and operates
independently of the University ....
"The parties understand and agree that this Agreement is the
only source of any control the University may have over the CIO or
its activities .... " App.27.
And the agreement requires that student organizations include in
every letter, contract, publication, or other written materials the
following disclaimer:
"Although this organization has members who are University of
Virginia students (faculty) (employees), the organization is
independent of the corporation which is the University and which is
not responsible for the organization's contracts, acts or
omissions." Id., at 28.
850
Any reader of Wide Awake would be on notice of the publication's
independence from the University. Cf.
Widmar v.
Vincent, 454 U. S., at 274, n. 14.
Second, financial assistance is distributed in a manner that
ensures its use only for permissible purposes. A student
organization seeking assistance must submit disbursement requests;
if approved, the funds are paid directly to the third-party vendor
and do not pass through the organization's coffers. This safeguard
accompanying the University's financial assistance, when provided
to a publication with a religious viewpoint such as Wide Awake,
ensures that the funds are used only to further the University's
purpose in maintaining a free and robust marketplace of ideas, from
whatever perspective. This feature also makes this case analogous
to a school providing equal access to a generally available
printing press (or other physical facilities),
ante, at 843,
and unlike a block grant to religious organizations.
Third, assistance is provided to the religious publication in a
context that makes improbable any perception of government
endorsement of the religious message. Wide Awake does not exist in
a vacuum. It competes with 15 other magazines and newspapers for
advertising and readership. The widely divergent viewpoints of
these many purveyors of opinion, all supported on an equal basis by
the University, significantly diminishes the danger that the
message of anyone publication is perceived as endorsed by the
University. Besides the general news publications, for example, the
University has provided support to The Yellow Journal, a humor
magazine that has targeted Christianity as a subject of satire, and
AI-Salam, a publication to "promote a better understanding of Islam
to the University Community," App. 92. Given this wide array of
nonreligious, antireligious and competing religious viewpoints in
the forum supported by the University, any perception that the
University endorses one particular viewpoint would be illogical.
This is not the harder case where religious speech threatens
851
to dominate the forum. Cf.
Capitol Square Review and Advisory
Bd. v.
Pinette, ante, at 777 (O'CONNOR, J., concurring
in part and concurring in judgment);
Mergens, 496 U. S., at
275.
Finally, although the question is not presented here, I note the
possibility that the student fee is susceptible to a Free Speech
Clause challenge by an objecting student that she should not be
compelled to pay for speech with which she disagrees. See,
e.
g., Keller v.
State Bar of Cal., 496 U. S. 1, 15 (1990);
Abood v.
Detroit Bd. of Ed., 431 U. S. 209, 236
(1977). There currently exists a split in the lower courts as to
whether such a challenge would be successful. Compare
Hays
County Guardian v.
Supple, 969 F.2d
111, 123 (CA5 1992), cert. denied, 506 U. S. 1087 (1993);
Kania v.
Fordham, 702 F.2d
475, 480 (CA4 1983);
Good v.
Associated Students of
Univ. of Wash., 86 Wash. 2d 94, 105-106, 542 P. 2d 762, 769
(1975) (en bane), with
Smith v.
Regents of Univ. of
Cal., 4 Cal. 4th 843, 863-864, 844 P. 2d 500, 513-514, cert.
denied, 510 U. S. 863 (1993). While the Court does not resolve the
question here, see
ante, at 840, the existence of such an
optout possibility not available to citizens generally, see
Abood, supra, at 259, n. 13 (Powell, J., concurring in
judgment), provides a potential basis for distinguishing proceeds
of the student fees in this case from proceeds of the general
assessments in support of religion that lie at the core of the
prohibition against religious funding, see
ante, at 840-841;
post, at 852-855 (THOMAS, J., concurring);
post, at
868-872 (SOUTER, J., dissenting), and from government funds
generally. Unlike moneys dispensed from state or federal
treasuries, the Student Activities Fund is collected from students
who themselves administer the fund and select qualifying recipients
only from among those who originally paid the fee. The government
neither pays into nor draws from this common pool, and a fee of
this sort appears conducive to granting individual students
proportional refunds. The Student Activities Fund, then, represents
not government resources,
852
THOMAS, J., concurring
whether derived from tax revenue, sales of assets, or otherwise,
but a fund that simply belongs to the students.
The Court's decision today therefore neither trumpets the
supremacy of the neutrality principle nor signals the demise of the
funding prohibition in Establishment Clause jurisprudence. As I
observed last Term, "[e]xperience proves that the Establishment
Clause, like the Free Speech Clause, cannot easily be reduced to a
single test."
Kiryas Joel, 512 U. S., at 720 (opinion
concurring in part and concurring in judgment). When bedrock
principles collide, they test the limits of categorical obstinacy
and expose the flaws and dangers of a Grand Unified Theory that may
turn out to be neither grand nor unified. The Court today does only
what courts must do in many Establishment Clause cases-focus on
specific features of a particular government action to ensure that
it does not violate the Constitution. By withholding from Wide
Awake assistance that the University provides generally to all
other student publications, the University has discriminated on the
basis of the magazine's religious viewpoint in violation of the
Free Speech Clause. And particular features of the University's
program-such as the explicit disclaimer, the disbursement of funds
directly to third-party vendors, the vigorous nature of the forum
at issue, and the possibility for objecting students to opt
outconvince me that providing such assistance in this case would
not carry the danger of impermissible use of public funds to
endorse Wide Awake's religious message.
Subject to these comments, I join the opinion of the Court.
JUSTICE THOMAS, concurring.
I agree with the Court's opinion and join it in full, but I
write separately to express my disagreement with the historical
analysis put forward by the dissent. Although the dissent starts
down the right path in consulting the original meaning of the
Establishment Clause, its misleading application of history yields
a principle that is inconsistent with our Nation's long tradition
of allowing religious adher-
853
ents to participate on equal terms in neutral government
programs.
Even assuming that the Virginia debate on the so-called
"Assessment Controversy" was indicative of the principles embodied
in the Establishment Clause, this incident hardly compels the
dissent's conclusion that government must actively discriminate
against religion. The dissent's historical discussion glosses over
the fundamental characteristic of the Virginia assessment bill that
sparked the controversy: The assessment was to be imposed for the
support of clergy in the performance of their function of teaching
religion. Thus, the "Bill Establishing a Provision for Teachers of
the Christian Religion" provided for the collection of a specific
tax, the proceeds of which were to be appropriated "by the
Vestries, Elders, or Directors of each religious society ... to a
provision for a Minister or Teacher of the Gospel of their
denomination, or the providing places of divine worship, and to
none other use whatsoever." See
Everson v.
Board of Ed.
of Ewing, 330 U. S.
1, 74 (1947) (appendix to dissent of Rutledge, J.).l
1 The dissent suggests that the assessment bill would have
created a "generally available subsidy program" comparable to
respondents' Student Activities Fund (SAF). See
post, at
869, n. 1. The dissent's characterization of the bill, however, is
squarely at odds with the bill's clear purpose and effect to
provide "for the support of Christian teachers."
Everson,
330 U. S., at 72. Moreover, the section of the bill cited by the
dissent, see
post, at 869, n. 1, simply indicated that funds
would be "disposed of under the direction of the General Assembly,
for the encouragement of seminaries of learning within the Counties
whence such sums shall arise,"
Everson, supra, at 74. This
provision disposing of undesignated funds hardly transformed the
"Bill Establishing a Provision for Teachers of the Christian
Religion" into a truly neutral program that would benefit religious
adherents as part of a large class of beneficiaries defined without
reference to religion. Indeed, the only appropriation of money made
by the bill would have been to promote "the general diffusion of
Christian knowledge," 330 U. S., at 72; any possible appropriation
for "seminaries of learning" depended entirely on future
legislative action.
Even assuming that future legislators would adhere to the bill's
directive in appropriating the undesignated tax revenues, nothing
in the bill
854
THOMAS, J., concurring
James Madison's Memorial and Remonstrance Against Religious
Assessments (hereinafter Madison's Remonstrance) must be understood
in this context. Contrary to the dissent's suggestion, Madison's
objection to the assessment bill did not rest on the premise that
religious entities may never participate on equal terms in neutral
government programs. Nor did Madison embrace the argument that
forms the linchpin of the dissent: that monetary subsidies are
constitutionally different from other neutral benefits programs.
Instead, Madison's comments are more consistent with the neutrality
principle that the dissent inexplicably discards. According to
Madison, the Virginia assessment was flawed because it "violate[d]
that equality which ought to be the basis of every law." Madison's
Remonstrance' 4, reprinted in
Everson, supra, at 66
(appendix to dissent of Rutledge, J.). The assessment violated the
"equality" principle not be-
would prevent use of those funds solely for sectarian
educational institutions. To the contrary, most schools at the time
of the founding were affiliated with some religious organization,
see C. Antieau, A. Downey, & E. Roberts, Freedom From Federal
Establishment, Formation and Early History of the First Amendment
Religion Clauses 163 (1964), and in fact there was no system of
public education in Virginia until several decades after the
assessment bill was proposed, see A. Morrison, The Beginnings of
Public Education in Virginia, 1776-1860, p. 9 (1917); see also A.
Johnson, The Legal Status of Church-State Relationships in the
United States 4 (1982) ("In Virginia the parish institutions
transported from England were the earliest educational agencies.
Although much of the teaching took place in the home and with the
aid of tutors, every minister had a school, and it was the duty of
the vestry to see that all the poor children were taught to read
and write") (footnote omitted). Further, the clearly religious
tenor of the Virginia assessment would seem to point toward
appropriation of residual funds to sectarian "seminaries of
learning." Finally, although modern historians have focused on the
opt-out provision, the dissent provides no indication that Madison
viewed the Virginia assessment as an evenhanded program; in fact,
several of the objections expressed in Madison's Memorial and
Remonstrance Against Religious Assessments, reprinted in
Everson, supra, at 63, focus clearly on the bill's violation
of the principle of "equality," or evenhandedness. See
infra
this page and 855-857.
855
cause it allowed religious groups to participate in a generally
available government program, but because the bill singled out
religious entities for special benefits. See ibid. (arguing that
the assessment violated the equality principle "by subjecting some
to peculiar burdens" and "by granting to others peculiar
exemptions").
Legal commentators have disagreed about the historical lesson to
take from the Assessment Controversy. For some, the experience in
Virginia is consistent with the view that the Framers saw the
Establishment Clause simply as a prohibition on governmental
preferences for some religious faiths over others. See R. Cord,
Separation of Church and State: Historical Fact and Current Fiction
20-23 (1982); Smith, Getting Off on the Wrong Foot and Back on
Again: A Reexamination of the History of the Framing of the
Religion Clauses of the First Amendment and a Critique of the
Reynolds and
Everson Decisions, 20 Wake Forest L.
Rev. 569, 590-591 (1984). Other commentators have rejected this
view, concluding that the Establishment Clause forbids not only
government preferences for some religious sects over others, but
also government preferences for religion over irreligion. See,
e. g., Laycock, "Nonpreferential" Aid to Religion: A False
Claim About Original Intent, 27 Wm. & Mary L. Rev. 875
(1986).
I find much to commend the former view. Madison's focus on the
preferential nature of the assessment was not restricted to the
fourth paragraph of the Remonstrance discussed above. The funding
provided by the Virginia assessment was to be extended only to
Christian sects, and the Remonstrance seized on this defect:
"Who does not see that the same authority which can establish
Christianity, in exclusion of all other Religions, may establish
with the same ease any particular sect of Christians, in exclusion
of all other Sects." Madison's Remonstrance , 3, reprinted in
Everson, supra, at 65.
856
THOMAS, J., concurring
In addition to the third and fourth paragraphs of the
Remonstrance, "Madison's seventh, ninth, eleventh, and twelfth
arguments all speak, in some way, to the same intolerance, bigotry,
unenlightenment, and persecution that had generally resulted from
previous exclusive religious establishments." Cord,
supra,
at 21. The conclusion that Madison saw the principle of
nonestablishment as barring governmental preferences for
particular religious faiths seems especially clear in light
of statements he made in the more relevant context of the House
debates on the First Amendment. See
Wallace v.
Jaffree, 472 U.
S. 38, 98 (1985) (REHNQUIST, J., dissenting) (Madison's views
"as reflected by actions on the floor of the House in 1789,
[indicate] that he saw the [First] Amendment as designed to
prohibit the establishment of a national religion, and perhaps to
prevent discrimination among sects," but not "as requiring
neutrality on the part of government between religion and
irreligion"). Moreover, even if more extreme notions of the
separation of church and state can be attributed to Madison, many
of them clearly stem from "arguments reflecting the concepts of
natural law, natural rights, and the social contract between
government and a civil society," Cord,
supra, at 22, rather
than the principle of nonestablishment in the Constitution. In any
event, the views of one man do not establish the original
understanding of the First Amendment.
But resolution of this debate is not necessary to decide this
case. Under any understanding of the Assessment Controversy, the
history cited by the dissent cannot support the conclusion that the
Establishment Clause "categorically condemn[s] state programs
directly aiding religious activity" when that aid is part of a
neutral program available to a wide array of beneficiaries.
Post, at 875. Even if Madison believed that the principle of
nonestablishment of religion precluded government financial support
for religion
per se (in the sense of government benefits
specifically targeting religion), there is no indication that at
the time of the fram-
857
ing he took the dissent's extreme view that the government must
discriminate against religious adherents by excluding them from
more generally available financial subsidies.2
In fact, Madison's own early legislative proposals cut against
the dissent's suggestion. In 1776, when Virginia's Revolutionary
Convention was drafting its Declaration of Rights, Madison prepared
an amendment that would have disestablished the Anglican Church.
This amendment (which went too far for the Convention and was not
adopted) is not nearly as sweeping as the dissent's version of
disestablishment; Madison merely wanted the Convention to declare
that "no man or class of men ought, on account of religion[,] to be
invested with
peculiar emoluments or privileges .... "
Madison's Amendments to the Declaration of Rights (May 29-June 12,
1776), in 1 Papers of James Madison 174 (W. Hutchinson & W.
Rachal eds. 1962) (emphasis added). Likewise, Madison's
Remonstrance stressed that "just government" is "best supported by
protecting every citizen in the enjoyment of his Religion with the
same equal hand which protects his person and his property; by
neither invading the equal rights of any Sect, nor suffering any
Sect to invade those of another." Madison's Remonstrance' 8,
reprinted in
Everson, 330 U. S., at 68; cf.
Terrett
v.
Taylor, 9 Cranch 43, 49 (1815) (holding that the Virginia
Constitution did not prevent the government from "aiding ... the
votaries of
2 To the contrary, Madison's Remonstrance decried the fact that
the assessment bill would require civil society to take
"cognizance" of religion. Madison's Remonstrance , 1, reprinted in
Everson v.
Board of Ed. of Ewing,
330 U. S. 1,64 (1947).
Respondents' exclusion of religious activities from SAF funding
creates this very problem. It requires University officials to
classify publications as "religious activities," and to
discriminate against the publications that fall into that category.
Such a policy also contravenes the principles expressed in
Madison's Remonstrance by encouraging religious adherents to
cleanse their speech of religious overtones, thus "degrad[ing] from
the equal rank of Citizens all those whose opinions in Religion do
not bend to those of the Legislative authority." Madison's
Remonstrance' 9, reprinted in
Everson, supra, at 69.
858
THOMAS, J., concurring
every sect to perform their own religious duties," or from
"establishing funds for the support of ministers, for public
charities, for the endowment of churches, or for the sepulture of
the dead").
Stripped of its flawed historical premise, the dissent's
argument is reduced to the claim that our Establishment Clause
jurisprudence permits neutrality in the context of access to
government
facilities but requires discrimination in access
to government
funds. The dissent purports to locate the
prohibition against "direct public funding" at the "heart" of the
Establishment Clause, see
post, at 878, but this conclusion
fails to confront historical examples of funding that date back to
the time of the founding. To take but one famous example, both
Houses of the First Congress elected chaplains, see S. Jour., 1st
Cong., 1st Sess., 10 (1820 ed.); H. R. Jour., 1st Cong., 1st Sess.,
26 (1826 ed.), and that Congress enacted legislation providing for
an annual salary of $500 to be paid out of the Treasury, see Act of
Sept. 22, 1789, ch. 17, § 4, 1 Stat. 70, 71. Madison himself was a
member of the committee that recommended the chaplain system in the
House. See H. R. Jour., at 11-12; 1 Annals of Congo 891 (1789);
Cord, Separation of Church and State:
Historical Fact and Current Fiction, at 25. This same system of
"direct public funding" of congressional chaplains has "continued
without interruption ever since that early session of Congress."
Marsh v.
Chambers, 463 U. S. 783, 788
(1983).3
3 A number of other, less familiar examples of what amount to
direct funding appear in early Acts of Congress. See,
e. g.,
Act of Feb. 20, 1833, ch. 42, 4 Stat. 618-619 (authorizing the
State of Ohio to sell "all or any part of the lands heretofore
reserved and appropriated by Congress for the support of religion
within the Ohio Company's ... purchases ... and to invest the money
arising from the sale thereof, in some productive fund; the
proceeds of which shall be for ever annually applied ... for the
support of religion within the several townships for which said
lands were originally reserved and set apart, and for no other use
or purpose whatso-
859
The historical evidence of government support for religious
entities through property tax exemptions is also overwhelming. As
the dissent concedes, property tax exemptions for religious bodies
"have been in place for over 200 years without disruption to the
interests represented by the Establishment Clause."
Post, at
881, n. 7 (citing
Walz v.
Tax Comm'n of City of New
York,
397 U. S.
664, 676-680 (1970)).4 In my view, the dissent's acceptance of
this tradition puts to rest the notion that the Establishment
Clause bars monetary aid to religious groups even when the aid is
equally available to other groups. A tax exemption in many cases is
economically and functionally indistinguishable from a direct
monetary subsidy.5 In one instance, the government relieves
reli-
ever"); Act of Mar. 2, 1833, ch. 86, §§ 1, 3, 6 Stat. 538
(granting to Georgetown College-a Jesuit institution-"lots in the
city of Washington, to the amount, in value, of twenty-five
thousand dollars," and directing the College to sell the lots and
invest the proceeds, thereafter using the dividends to establish
and endow such professorships as it saw fit); see also
Wallace v.
Jaffree, 472 U. S. 38, 103 (1985)
(REHNQUIST, J., dissenting) ("As the United States moved from the
18th into the 19th century, Congress appropriated time and again
public moneys in support of sectarian Indian education carried on
by religious organizations").
4 The Virginia experience during the period of the Assessment
Controversy itself is inconsistent with the rigid "no-aid"
principle embraced by the dissent. Since at least 1777, the
Virginia Legislature authorized tax exemptions for property
belonging to the "commonwealth, or to any county, town, college,
houses for divine worship, or seminary of learning." Act of Jan.
23, 1800, ch. 2, § 1,1800 Va. Acts. And even Thomas Jefferson,
respondents' founder and a champion of disestablishment in
Virginia, advocated the use of public funds in Virginia for a
department of theology in conjunction with other professional
schools. See S. Padover, The Complete Jefferson 1067 (1943); see
also id., at 958 (noting that Jefferson advocated giving "to the
sectarian schools of divinity the full benefit [of] the public
provisions made for instruction in the other branches of
science").
5 In the tax literature, this identity is called a "tax
expenditure," a concept "based upon recognition of the fact that a
government can appropriate money to a particular person or group by
using a special, narrowly directed tax deduction or exclusion,
instead of by using its ordinary direct
860
THOMAS, J., concurring
gious entities (along with others) of a generally applicable
tax; in the other, it relieves religious entities (along with
others) of some or all of the burden of that tax by returning it in
the form of a cash subsidy. Whether the benefit is provided at the
front or back end of the taxation process, the financial aid to
religious groups is undeniable. The analysis under the
Establishment Clause must also be the same: "Few concepts are more
deeply embedded in the fabric of our na-
spending mechanisms. For example, a government with a general
income tax, wanting to add $7,000 to the spendable income of a
preacher whose top tax rate is 30%, has two ways of subsidizing
him. The government can send the preacher a check for $10,000 and
tax him on all of his income, or it can authorize him to reduce his
taxable income by $23,333.33 [resulting in a tax saving of $7,000].
If the direct payment were itself taxable and did not alter his tax
bracket, the preacher would receive the same benefit from the tax
deduction as he would from the direct payment." Wolfman, Tax
Expenditures: From Idea to Ideology, 99 Harv. L. Rev. 491, 491-492
(1985). In fact, Congress has provided a similar "tax expenditure"
in § 107 of the Internal Revenue Code by granting a "'minister of
the gospel''' an unlimited exclusion for the rental value of any
home furnished as part of his payor for the rental allowance paid
to him. See id., at 492, n. 6.
Although Professor Bittker is certainly a leading scholar in the
tax field, the dissent's reliance on Bittker, see
post, at
881, n. 7, is misplaced in this context. See Adler, The Internal
Revenue Code, The Constitution, and the Courts: The Use of Tax
Expenditure Analysis in Judicial Decision Making, 28 Wake Forest L.
Rev. 855, 862, n. 30 (1993):
"Early criticism of the tax expenditure concept focused on the
difficulty of drawing a dividing line between what is or is not a
special provision. Professor Boris Bittker, for example, argued
that since no tax is all inclusive, exemptions from any tax could
not be described as the equivalent of subsidies. Boris 1. Bittker,
Churches, Taxes and the Constitution, 78 Yale L. J. 1285
(1969). This wholesale rejection of tax expenditure analysis was
short-lived and attracted few supporters. Rather, the large body of
literature about tax expenditures accepts the basic concept that
special exemptions from tax function as subsidies. The current
debate focuses on whether particular items are correctly identified
as tax expenditures and whether incentive provisions are more
efficient when structured as tax expenditures rather than direct
spending programs.
See generally [numerous
authorities]."
861
tional life, beginning with pre-Revolutionary colonial times,
than for the government to exercise at the very least this kind of
benevolent neutrality toward churches and religious exercise .... "
Walz, supra, at 676-677.
Consistent application of the dissent's "no-aid" principle would
require that" 'a church could not be protected by the police and
fire departments, or have its public sidewalk kept in repair.'"
Zobrest v.
Catalina Foothills School Dist., 509 U. S.
1, 8 (1993) (quoting
Widmar v.
Vincent, 454 U. S. 263, 274-275
(1981)). The dissent admits that "evenhandedness may become
important to ensuring that religious interests are not inhibited."
Post, at 879, n. 5. Surely the dissent must concede,
however, that the same result should obtain whether the government
provides the populace with fire protection by reimbursing the costs
of smoke detectors and overhead sprinkler systems or by
establishing a public fire department. If churches may benefit on
equal terms with other groups in the latter program-that is, if a
public fire department may extinguish fires at churches-then they
may also benefit on equal terms in the former program.
Though our Establishment Clause jurisprudence is in hopeless
disarray, this case provides an opportunity to reaffirm one basic
principle that has enjoyed an uncharacteristic degree of consensus:
The Clause does not compel the exclusion of religious groups from
government benefits programs that are generally available to a
broad class of participants. See
Lamb's Chapel v.
Center
Moriches Union Free School Dist., 508 U. S. 384 (1993);
Zobrest, supra; Board of Ed. of Westside Community Schools
(Dist. 66) v.
Mergens, 496 U. S. 226 (1990);
Texas
Monthly, Inc. v.
Bullock, 489 U. S. 1 (1989);
Witters v.
Washington Dept. of Servs. for Blind,
474 U. S. 481
(1986);
Mueller v.
Allen, 463 U. S. 388 (1983);
Widmar, supra. Under the dissent's view, however, the
University of Virginia may provide neutral access to the
University's own printing press, but it may not provide the same
service when the press is owned by a third party. Not sur-
862
THOMAS, J., concurring
prisingly, the dissent offers no logical justification for this
conclusion, and none is evident in the text or original meaning of
the First Amendment.
If the Establishment Clause is offended when religious adherents
benefit from neutral programs such as the University of Virginia's
Student Activities Fund, it must also be offended when they receive
the same benefits in the form of in-kind subsidies. The
constitutional demands of the Establishment Clause may be judged
against either a baseline of "neutrality" or a baseline of "no aid
to religion," but the appropriate baseline surely cannot depend on
the fortuitous circumstances surrounding the
form of aid.
The contrary rule would lead to absurd results that would jettison
centuries of practice respecting the right of religious adherents
to participate on neutral terms in a wide variety of
governmentfunded programs.
Our Nation's tradition of allowing religious adherents to
participate in evenhanded government programs is hardly limited to
the class of "essential public benefits" identified by the dissent.
See
post, at 879, n. 5. A broader tradition can be traced at
least as far back as the First Congress, which ratified the
Northwest Ordinance of 1787. See Act of Aug. 7, 1789, ch. 8, 1
Stat. 50. Article III of that famous enactment of the Confederation
Congress had provided: "Religion, morality, and knowledge ... being
necessary to good government and the happiness of mankind, schools
and the means of education shall forever be encouraged."
Id., at 52, n. (a). Congress subsequently set aside federal
lands in the Northwest Territory and other territories for the use
of schools. See,
e. g., Act of Mar. 3, 1803, ch. 21, § 1, 2
Stat. 225-226; Act of Mar. 26, 1804, ch. 35, § 5, 2 Stat. 279; Act
of Feb. 15, 1811, ch. 14, § 10, 2 Stat. 621; Act of Apr. 18, 1818,
ch. 67, § 6, 3 Stat. 430; Act of Apr. 20, 1818, ch. 126, § 2, 3
Stat. 467. Many of the schools that enjoyed the benefits of these
land grants undoubtedly were church-affiliated sectarian
institutions as there was no requirement that the schools be
"public." See
863
C. Antieau, A. Downey, & E. Roberts, Freedom From Federal
Establishment, Formation and Early History of the First Amendment
Religion Clauses 163 (1964). Nevertheless, early Congresses found
no problem with the provision of such neutral benefits. See also
id., at 174 (noting that "almost universally[,] Americans from 1789
to 1825 accepted and practiced governmental aid to religion and
religiously oriented educational institutions").
Numerous other government benefits traditionally have been
available to religious adherents on neutral terms. Several examples
may be found in the work of early Congresses, including copyright
protection for "the author and authors of any map, chart, book or
books," Act of May 31, 1790, ch. 15, § 1, 1 Stat. 124, and a
privilege allowing "every printer of newspapers [to] send one paper
to each and every other printer of newspapers within the United
States, free of postage," Act of Feb. 20, 1792, ch. 7, § 21, 1
Stat. 238. Neither of these laws made any exclusion for the
numerous authors or printers who manifested a belief in or about a
deity.
Thus, history provides an answer for the constitutional question
posed by this case, but it is not the one given by the dissent. The
dissent identifies no evidence that the Framers intended to disable
religious entities from participating on neutral terms in
evenhanded government programs. The evidence that does exist points
in the opposite direction and provides ample support for today's
decision.
JUSTICE SOUTER, with whom JUSTICE STEVENS, JUSTICE GINSBURG, and
JUSTICE BREYER join, dissenting.
The Court today, for the first time, approves direct funding of
core religious activities by an arm of the State. It does so,
however, only after erroneous treatment of some familiar principles
of law implementing the First Amendment's Establishment and Speech
Clauses, and by viewing the very funds in question as beyond the
reach of the Establishment Clause's funding restrictions as such.
Because there is no
864
SOUTER, J., dissenting
warrant for distinguishing among public funding sources for
purposes of applying the First Amendment's prohibition of religious
establishment, I would hold that the University's refusal to
support petitioners' religious activities is compelled by the
Establishment Clause. I would therefore affirm.
I
The central question in this case is whether a grant from the
Student Activities Fund to pay Wide Awake's printing expenses would
violate the Establishment Clause. Although the Court does not dwell
on the details of Wide Awake's message, it recognizes something
sufficiently religious in the publication to demand Establishment
Clause scrutiny. Although the Court places great stress on the
eligibility of secular as well as religious activities for grants
from the Student Activities Fund, it recognizes that such
evenhanded availability is not by itself enough to satisfy
constitutional requirements for any aid scheme that results in a
benefit to religion.
Ante, at 839; see also
ante, at
846-848 (O'CONNOR, J., concurring). Something more is necessary to
justify any religious aid. Some Members of the Court, at least, may
think the funding permissible on a view that it is indirect, since
the money goes to Wide Awake's printer, not through Wide Awake's
own checking account. The Court's principal reliance, however, is
on an argument that providing religion with economically valuable
services is permissible on the theory that services are
economically indistinguishable from religious access to
governmental speech forums, which sometimes is permissible. But
this reasoning would commit the Court to approving direct religious
aid beyond anything justifiable for the sake of access to speaking
forums. The Court implicitly recognizes this in its further attempt
to circumvent the clear bar to direct governmental aid to religion.
Different Members of the Court seek to avoid this bar in different
ways. The opinion of the Court makes the novel assumption that only
direct aid financed with tax
865
revenue is barred, and draws the erroneous conclusion that the
involuntary Student Activities Fee is not a tax. I do not read
JUSTICE O'CONNOR'S opinion as sharing that assumption; she places
this Student Activities Fund in a category of student funding
enterprises from which religious activities in public universities
may benefit, so long as there is no consequent endorsement of
religion. The resulting decision is in unmistakable tension with
the accepted law that the Court continues to avow.
A
The Court's difficulties will be all the more clear after a
closer look at Wide Awake than the majority opinion affords. The
character of the magazine is candidly disclosed on the opening page
of the first issue, where the editor-in-chief announces Wide
Awake's mission in a letter to the readership signed, "Love in
Christ": it is "to challenge Christians to live, in word and deed,
according to the faith they proclaim and to encourage students to
consider what a personal relationship with Jesus Christ means."
App. 45. The masthead of every issue bears St. Paul's exhortation,
that "[t]he hour has come for you to awake from your slumber,
because our salvation is nearer now than when we first believed.
Romans 13:11."
Each issue of Wide Awake contained in the record makes good on
the editor's promise and echoes the Apostle's call to accept
salvation:
"The only way to salvation through Him is by confessing and
repenting of sin. It is the Christian's duty to make sinners aware
of their need for salvation. Thus, Christians must confront and
condemn sin, or else they fail in their duty of love." Mourad &
Prince, A Love/Hate Relationship, Nov.lDec. 1990, p. 3.
"When you get to the final gate, the Lord will be handing out
boarding passes, and He will examine your ticket. If, in your
lifetime, you did not request a seat
866
SOUTER, J., dissenting
on His Friendly Skies Flyer by trusting Him and asking Him to be
your pilot, then you will not be on His list of reserved seats (and
the Lord will know you not). You will not be able to buy a ticket
then; no amount of money or desire will do the trick. You will be
met by your chosen pilot and flown straight to Hell on an express
jet (without air conditioning or toilets, of course)." Ace, The
Plane Truth, ibid.
"'Go into all the world and preach the good news to all
creation.' (Mark 16:15) The Great Commission is the prime-directive
for our lives as Christians .... " Liu, Christianity and the
Five-legged Stool, Sept.lOct. 1991, p.3.
"The Spirit provides access to an intimate relationship with the
Lord of the Universe, awakens our minds to comprehend spiritual
truth and empowers us to serve as effective ambassadors for the
Lord Jesus in our earthly lives." Buterbaugh, A Spiritual
Advantage, Mar.lApr. 1991, p. 21.
There is no need to quote further from articles of like tenor,
but one could examine such other examples as religious poetry, see
Macpherson, I Have Started Searching for Angels, Nov.lDec. 1990, p.
18; religious textual analysis and commentary, see Buterbaugh,
Colossians 1:1-14: Abundant Life, id., at 20; Buterbaugh, John
14-16: A Spiritual Advantage, Mar.lApr., pp. 20-21; and instruction
on religious practice, see Early, Thanksgiving and Prayer,
Nov.lDec. 1990, p. 21 (providing readers with suggested prayers and
posing contemplative questions about biblical texts); Early, Hope
and Spirit, Mar.lApr. 1991, p. 21 (similar).
Even featured essays on facially secular topics become platforms
from which to call readers to fulfill the tenets of Christianity in
their lives. Although a piece on racism has some general discussion
on the subject, it proceeds beyond even the analysis and
interpretation of biblical texts to con-
867
clude with the counsel to take action because that is the
Christian thing to do:
"God calls us to take the risks of voluntarily stepping out of
our comfort zones and to take joy in the whole richness of our
inheritance in the body of Christ. We must take the love we receive
from God and share it with all peoples of the world.
"Racism is a disease of the heart, soul, and mind, and only when
it is extirpated from the individual consciousness and replaced
with the love and peace of God will true personal and communal
healing begin." Liu, Rosenberger, Mourad, and Prince, "Eracing"
Mistakes, Nov.lDec. 1990, p. 14.
The same progression occurs in an article on eating disorders,
which begins with descriptions of anorexia and bulimia and ends
with this religious message:
"As thinking people who profess a belief in God, we must grasp
firmly the truth, the reality of who we are because of Christ.
Christ is the Bread of Life (John 6:35). Through Him, we are full.
He alone can provide the ultimate source of spiritual fulfillment
which permeates the emotional, psychological, and physical
dimensions of our lives." Ferguson & Lassiter, From Calorie to
Calvary, Sept.lOct. 1991, p. 14.
This writing is no merely descriptive examination of religious
doctrine or even of ideal Christian practice in confronting life's
social and personal problems. Nor is it merely the expression of
editorial opinion that incidentally coincides with Christian ethics
and reflects a Christian view of human obligation. It is
straightforward exhortation to enter into a relationship with God
as revealed in Jesus Christ, and to satisfy a series of moral
obligations derived from the teachings of Jesus Christ. These are
not the words of "student news, information, opinion,
entertainment, or academic communicatio[n] ... " (in the language
of the University's funding
868
SOUTER, J., dissenting
criterion, App. to Pet. for Cert. 61a), but the words of
"challenge [to] Christians to live, in word and deed, according to
the faith they proclaim and ... to consider what a personal
relationship with Jesus Christ means" (in the language of Wide
Awake's founder, App. 45). The subject is not the discourse of the
scholar's study or the seminar room, but of the evangelist's
mission station and the pulpit. It is nothing other than the
preaching of the word, which (along with the sacraments) is what
most branches of Christianity offer those called to the religious
life.
D sing public funds for the direct subsidization of preaching
the word is categorically forbidden under the Establishment Clause,
and if the Clause was meant to accomplish nothing else, it was
meant to bar this use of public money. Evidence on the subject
antedates even the Bill of Rights itself, as may be seen in the
writings of Madison, whose authority on questions about the meaning
of the Establishment Clause is well settled,
e. g., Committee
for Public Ed. &
Religious Liberty v.
Nyquist, 413
U. S. 756, 770, n. 28 (1973);
Everson v.
Board of Ed.
of Ewing, 330 U. S.
1, 13 (1947). Four years before the First Congress proposed the
First Amendment, Madison gave his opinion on the legitimacy of
using public funds for religious purposes, in the Memorial and
Remonstrance Against Religious Assessments, which played the
central role in ensuring the defeat of the Virginia tax assessment
bill in 1786 and framed the debate upon which the Religion Clauses
stand:
"Who does not see that ... the same authority which can force a
citizen to contribute three pence only of his property for the
support of anyone establishment, may force him to conform to any
other establishment in all cases whatsoever?" James Madison,
Memorial and Remonstrance Against Religious Assessments' 3
(hereinafter Madison's Remonstrance), reprinted in Everson,
supra, at 65-66 (appendix to dissent of Rutledge, J.).
869
Madison wrote against a background in which nearly every Colony
had exacted a tax for church support,
Everson, supra, at 10,
n. 8, the practice having become "so commonplace as to shock the
freedom-loving colonials into a feeling of abhorrence," 330 U. S.,
at 11 (footnote omitted). Madison's Remonstrance captured the
colonists' "conviction that individual religious liberty could be
achieved best under a government which was stripped of all power to
tax, to support, or otherwise to assist any or all religions, or to
interfere with the beliefs of any religious individual or group."
Ibid.1 Their sentiment, as expressed by Madison in
Virginia,
IJUSTICE THOMAS suggests that Madison would have approved of the
assessment bill if only it had satisfied the principle of
evenhandedness. Nowhere in the Remonstrance, however, did Madison
advance the view that Virginia should be able to provide financial
support for religion as part of a generally available subsidy
program. Indeed, while JUSTICE THOMAS claims that the "funding
provided by the Virginia assessment was to be extended only to
Christian sects,"
ante, at 855, it is clear that the bill
was more general in scope than this. While the bill, which is
reprinted in
Everson v.
Board of Ed. of Ewing,
330 U. S. 1,72-74
(1947), provided that each taxpayer could designate a religious
society to which he wanted his levy paid, id., at 73, it would also
have allowed a taxpayer to refuse to appropriate his levy to any
religious society, in which case the legislature was to use these
unappropriated sums to fund "seminaries of learning."
Id.,
at 74 (contrary to JUSTICE THOMAS'S unsupported assertion, this
portion of the bill was no less obligatory than any other). While
some of these seminaries undoubtedly would have been religious in
character, others would not have been, as a seminary was generally
understood at the time to be "any school, academy, college or
university, in which young persons are instructed in the several
branches of learning which may qualify them for their future
employments." N. Webster, An American Dictionary of the English
Language (1st ed. 1828); see also 14 The Oxford English Dictionary
956 (2d ed. 1989). Not surprisingly, then, scholars have generally
agreed that the bill would have provided funding for nonreligious
schools. See,
e. g., Laycock, "Nonpreferential" Aid to
Religion: A False Claim About Original Intent, 27 Wm. & Mary L.
Rev. 875, 897, and n. 108 (1986) ("Any taxpayer could refuse to
designate a church, with undesignated church taxes going to a fund
for schools .... The bill used the phrase 'seminaries of learning,'
which almost certainly meant schools generally and not just schools
for the training of ministers"); T. Buckley,
870
SOUTER, J., dissenting
led not only to the defeat of Virginia's tax assessment bill,
but also directly to passage of the Virginia Bill for Establishing
Religious Freedom, written by Thomas Jefferson. That
Church and State in Revolutionary Virginia, 1776-1787, p. 133
(1977) ("The assessment had been carefully drafted to permit those
who preferred to support education rather than religion to do so");
T. Curry, The First Freedoms 141 (1986) ("[T]hose taxes not
designated for any specific denomination [were] allocated to
education"). It is beside the point that "there was no system of
public education in Virginia until several decades after the
assessment bill was proposed,"
ante, at 854, n. 1 (THOMAS,
J., concurring); because the bill was never passed, the funds that
it would have made available for secular, public schools never
materialized. The fact that the bill, if passed, would have funded
secular as well as religious instruction did nothing to soften
Madison's opposition to it.
Nor is it fair to argue that Madison opposed the bill only
because it treated religious groups unequally.
Ante, at
854-855 (THOMAS, J., concurring). In various paragraphs of the
Remonstrance, Madison did complain about the bill's peculiar
burdens and exemptions,
Everson, supra, at 66, but to
identify this factor as the sole point of Madison's opposition to
the bill is unfaithful to the Remonstrance's text. Madison strongly
inveighed against the proposed aid for religion for a host of
reasons (the Remonstrance numbers 15 paragraphs, each containing at
least one point in opposition), and crucial here is the fact that
many of those reasons would have applied whether or not the state
aid was being distributed equally among sects, and whether or not
the aid was going to those sects in the context of an evenhanded
government program. See,
e. g., Madison's Remonstrance,
reprinted in
Everson, 330 U. S., at 64, , 1 ("[I]n matters
of Religion, no man's right is abridged by the institution of Civil
Society, and ... Religion is wholly exempt from its cognizance");
id., at 67, , 6 (arguing that state support of religion "is a
contradiction to the Christian Religion itself; for every page of
it disavows a dependence on the powers of this world"); ibid., , 7
("[E]xperience witnesseth that ecclesiastical establishments,
instead of maintaining the purity and efficacy of Religion, have
had a contrary operation"). Madison's objections were supplemented
by numerous other petitions in opposition to the bill that likewise
do not suggest that the lack of evenhandedness was its dispositive
flaw. L. Levy, The Establishment Clause: Religion and the First
Amendment 63-67 (2d ed. 1994). For example, the petition that
received the largest number of signatories was motivated by the
view that religion should only be supported voluntarily.
Id., at 63-64. Indeed, Madison's Remonstrance did not argue
for a bill distributing aid to all sects and religions on an equal
basis, and the
871
bill's preamble declared that "to compel a man to furnish
contributions of money for the propagation of opinions which he
disbelieves, is sinful and tyrannical," Jefferson, A Bill for
Establishing Religious Freedom, reprinted in 5 The Founder's
Constitution 84 (P. Kurland & R. Lerner eds. 1987), and its
text provided "[t]hat no man shall be compelled to frequent or
support any religious worship, place, or ministry whatsoever ... ,"
id., at 85. See generally
Everson, 330 U. S., at 13.
We have "previously recognized that the provisions of the First
Amendment, in the drafting and adoption of which Madison and
Jefferson played such leading roles, had the same objective and
were intended to provide the same protection against governmental
intrusion on religious liberty as the Virginia statute."
Ibid.; see also Laycock, "Nonpreferential" Aid to Religion:
A False Claim About Original Intent, 27 Wm. & Mary L. Rev. 875,
921, 923 (1986) ("[I]f the debates of the 1780's support any
proposition, it is that the Framers opposed government financial
support for religion .... They did not substitute small taxes for
large taxes; three pence was as bad as any larger sum. The
principle was what mattered. With respect to money, religion was to
be wholly voluntary. Churches either would support
outgrowth of the Remonstrance and the defeat of the Virginia
assessment was not such a bill; rather, it was the Virginia Bill
for Establishing Religious Freedom, which, as discussed in the
text, proscribed the use of tax dollars for religious purposes.
In attempting to recast Madison's opposition as having
principally been targeted against "governmental preferences for
particular religious faiths,"
ante, at 856 (emphasis
in original), JUSTICE THOMAS wishes to wage a battle that was lost
long ago, for "this Court has rejected unequivocally the contention
that the Establishment Clause forbids only governmental preference
of one religion over another,"
School Dist. of Abington
Township v.
Schempp, 374 U. S. 203,216 (1963);
see also
Texas Monthly, Inc. v.
Bullock, 489 U. S. 1, 17 (1989)
(plurality opinion);
id., at 28 (Blackmun, J., concurring in
judgment);
Wallace v.
Jaffree, 472 U. S. 38, 52-53
(1985); Torcaso v.
Watkins, 367 U. S. 488, 495
(1961);
Engel v.
Vitale, 370 U. S. 421, 430 (1962);
Everson, supra, at 15; see generally
Lee v.
Weisman, 505
U. S. 577, 609-616 (1992) (SOUTER, J., concurring).
872
SOUTER, J., dissenting
themselves or they would not, but the government would neither
help nor interfere") (footnote omitted); T. Curry, The First
Freedoms 217 (1986) (At the time of the framing of the Bill of
Rights, "[t]he belief that government assistance to religion,
especially in the form of taxes, violated religious liberty had a
long history"); J. Choper, Securing Religious Liberty 16 (1995)
("There is broad consensus that a central threat to the religious
freedom of individuals and groupsindeed, in the judgment of many
the most serious infringement upon religious liberty-is posed by
forcing them to pay taxes in support of a religious establishment
or religious activities") (footnotes omitted; internal quotation
marks omitted).2
2JUSTICE THOMAS attempts to cast doubt on this accepted version
of Establishment Clause history by reference to historical facts
that are largely inapposite.
Ante, at 857-858, 862-863
(concurring opinion). As I have said elsewhere, individual Acts of
Congress, especially when they are few and far between, scarcely
serve as an authoritative guide to the meaning of the Religion
Clauses, for "like other politicians, [members of the early
Congresses] could raise constitutional ideals one day and turn
their backs on them the next. [For example,] ... [t]en years after
proposing the First Amendment, Congress passed the Alien and
Sedition Acts, measures patently unconstitutional by modern
standards. If the early Congress's political actions were
determinative, and not merely relevant, evidence of constitutional
meaning, we would have to gut our current First Amendment doctrine
to make room for political censorship."
Lee v.
Weisman, supra, at 626 (concurring opinion). The legislation
cited by JUSTICE THOMAS, including the Northwest Ordinance, is no
more dispositive than the Alien and Sedition Acts in interpreting
the First Amendment. Even less persuasive, then, are citations to
constitutionally untested Acts dating from the mid-19th century,
for without some rather innovative argument, they cannot be offered
as providing an authoritative gloss on the Framers' intent.
JUSTICE THOMAS'S references to Madison's actions as a legislator
also provide little support for his cause. JUSTICE THOMAS seeks to
draw a significant lesson out of the fact that, in seeking to
disestablish the Anglican Church in Virginia in 1776, Madison did
not inveigh against state funding of religious activities.
Ante, at 857 (concurring opinion). That was
873
The principle against direct funding with public money is
patently violated by the contested use of today's student activity
fee.3 Like today's taxes generally, the fee is Madison's
threepence. The University exercises the power of the State to
compel a student to pay it, see Jefferson's Preamble,
supra,
and the use of any part of it for the direct support of religious
activity thus strikes at what we have repeatedly
not the task at hand, however. Madison was acting with the
specific goal of eliminating the special privileges enjoyed by
Virginia Anglicans, and he made no effort to layout the broader
views of church and state that came to bear in his drafting of the
First Amendment some 13 years later. That Madison did not speak in
more expansive terms than necessary in 1776 was hardly surprising
for, as it was, his proposal was defeated by the Virginia
Convention as having gone too far.
Ibid.
Similarly, the invocation of Madison's tenure on the
congressional committee that approved funding for legislative
chaplains provides no support for more general principles that run
counter to settled Establishment Clause jurisprudence. As I have
previously pointed out, Madison, upon retirement, "insisted that
'it was not with my approbation, that the deviation from [the
immunity of religion from civil jurisdiction] took place in Congs.,
when they appointed Chaplains, to be paid from the N atl.
Treasury.' "
Lee, 505 U. S., at 625, n. 6, quoting Letter
from J. Madison to E. Livingston (July 10, 1822), in 5 The
Founders' Constitution 105 (P. Kurland & R. Lerner eds.
(1987)). And when we turned our attention to deciding whether
funding of legislative chaplains posed an establishment problem, we
did not address the practice as one instance of a larger class of
permissible government funding of religious activities. Instead,
Marsh v.
Chambers, 463 U. S. 783, 791
(1983), explicitly relied on the singular, 200-year pedigree of
legislative chaplains, noting that "[t]his unique history"
justified carving out an exception for the specific practice in
question. Given that the decision upholding this practice was
expressly limited to its facts, then, it would stand the
Establishment Clause on its head to extract from it a broad rule
permitting the funding of religious activities.
3 In the District Court, the parties agreed to the following
facts: "The University of Virginia has charged at all times
relevant herein and currently charges each full-time student a
compulsory student activity fee of $14.00 per semester. There is no
procedural or other mechanism by which a student may decline to pay
the fee." App. 37; see also id., at 9, 21.
874
SOUTER, J., dissenting
held to be the heart of the prohibition on establishment.
Everson, 330 U. S., at 15-16 ("The 'establishment of
religion' clause ... means at least this .... No tax in any amount,
large or small, can be levied to support any religious activities
or institutions, whatever they may be called, or whatever form they
may adopt to teach or practice religion"); see
School Dist. of
Grand Rapids v.
Ball, 473 U. S. 373, 385 (1985)
("Although Establishment Clause jurisprudence is characterized by
few absolutes, the Clause does absolutely prohibit
government-financed or government-sponsored indoctrination into the
beliefs of a particular religious faith");
Committee for Public
Ed. v.
Nyquist, 413 U. S., at 780 ("In the absence of an
effective means of guaranteeing that the state aid derived from
public funds will be used exclusively for secular, neutral, and
nonideological purposes, it is clear from our cases that direct aid
in whatever form is invalid"); id., at 772 ("Primary among those
evils" against which the Establishment Clause guards "have been
sponsorship, financial support, and active involvement of the
sovereign in religious activity") (citations and internal quotation
marks omitted); see also
Lee v.
Weisman, 505 U. S. 577, 640 (1992)
(SCALIA, J., dissenting) ("The coercion that was a hallmark of
historical establishments of religion was coercion of religious
orthodoxy and of financial support by force of law and threat of
penalty") (emphasis deleted); cf.
Flast v.
Cohen,
392 U. S. 83,
103-104 (1968) (holding that taxpayers have an adequate stake in
the outcome of Establishment Clause litigation to satisfy Article
III standing requirements, after stating that "[o]ur history
vividly illustrates that one of the specific evils feared by those
who drafted the Establishment Clause and fought for its adoption
was that the taxing and spending power would be used to favor one
religion over another or to support religion in general").
The Court, accordingly, has never before upheld direct state
funding of the sort of proselytizing published in Wide
875
Awake and, in fact, has categorically condemned state programs
directly aiding religious activity,
School Dist. v.
Ball,
supra, at 395 (striking programs providing secular instruction
to nonpublic school students on nonpublic school premises because
they are "indistinguishable from the provision of a direct cash
subsidy to the religious school that is most clearly prohibited
under the Establishment Clause");
Wolman v.
Walter,
433 U. S. 229,
254 (1977) (striking field trip aid program because it constituted
"an impermissible direct aid to sectarian education");
Meek
v.
Pittenger, 421 U. S. 349, 365 (1975)
(striking material and equipment loan program to nonpublic schools
because of the inability to "channe[l] aid to the secular without
providing direct aid to the sectarian");
Committee for Public
Ed. v.
Nyquist, supra, at 774 (striking aid to nonpublic
schools for maintenance and repair of facilities because "[n]o
attempt is made to restrict payments to those expenditures related
to the upkeep of facilities used exclusively for secular
purposes");
Levitt v.
Committee for Public Ed. &
Religious Liberty, 413 U. S. 472, 480 (1973)
(striking aid to nonpublic schools for state-mandated tests because
the State had failed to "assure that the statesupported activity is
not being used for religious indoctrination");
Tilton v.
Richardson, 403 U. S. 672, 683 (1971)
(plurality opinion) (striking as insufficient a 20-year limit on
prohibition for religious use in federal construction program for
university facilities because unrestricted use even after 20 years
"is in effect a contribution of some value to a religious body");
id., at 689 (Douglas, J., joined by Black, and Marshall, JJ.,
concurring in part and dissenting in part).
Even when the Court has upheld aid to an institution performing
both secular and sectarian functions, it has always made a
searching enquiry to ensure that the institution kept the secular
activities separate from its sectarian ones, with any direct aid
flowing only to the former and never the latter.
Bowen v.
Kendrick, 487
U. S. 589, 614-615 (1988) (upholding
876
SOUTER, J., dissenting
grant program for services related to premarital adolescent
sexual relations on ground that funds cannot be "used by the
grantees in such a way as to advance religion");
Roemer v.
Board of Public Works of Md., 426 U. S. 736, 746-748,
755, 759-761 (1976) (plurality opinion) (upholding general aid
program restricting uses of funds to secular activities only);
Hunt v.
McNair, 413 U. S. 734, 742-745
(1973) (upholding general revenue bond program excluding from
participation facilities used for religious purposes);
Tilton v.
Richardson, supra, at 679-682 (plurality
opinion) (upholding general aid program for construction of
academic facilities as "[t]here is no evidence that religion seeps
into the use of any of these facilities"); see
Board of Ed. of
Central School Dist. No.1 v.
Allen, 392 U. S. 236, 244-248
(1968) (upholding textbook loan program limited to secular books
requested by individual students for secular educational
purposes).
Reasonable minds may differ over whether the Court reached the
correct result in each of these cases, but their common principle
has never been questioned or repudiated. "Although Establishment
Clause jurisprudence is characterized by few absolutes, the Clause
does absolutely prohibit government-financed ... indoctrination
into the beliefs of a particular religious faith."
School
Dist. v.
Ball, 473 U. S., at 385.
B
Why does the Court not apply this clear law to these clear facts
and conclude, as I do, that the funding scheme here is a clear
constitutional violation? The answer must be in part that the Court
fails to confront the evidence set out in the preceding section.
Throughout its opinion, the Court refers uninformatively to Wide
Awake's "Christian viewpoint,"
ante, at 826, or its
"religious perspective,"
ante, at 832, and in distinguishing
funding of Wide Awake from the funding of a church, the Court
maintains that "[Wide Awake] is not a religious institution, at
least in the usual sense,"
ante, at
877
844; 4 see also
ante, at 826. The Court does not quote
the magazine's adoption of Saint Paul's exhortation to awaken to
the nearness of salvation, or any of its articles enjoining readers
to accept Jesus Christ, or the religious verses, or the religious
textual analyses, or the suggested prayers. And so it is easy for
the Court to lose sight of what the University students and the
Court of Appeals found so obvious, and to blanch the patently and
frankly evangelistic character of the magazine by unrevealing
allusions to religious points of view.
Nevertheless, even without the encumbrance of detail from Wide
Awake's actual pages, the Court finds something sufficiently
religious about the magazine to require examination under the
Establishment Clause, and one may therefore ask why the unequivocal
prohibition on direct funding does not lead the Court to conclude
that funding would be unconstitutional. The answer is that the
Court focuses on a subsidiary body of law, which it correctly
states but ultimately misapplies. That subsidiary body of law
accounts for the Court's substantial attention to the fact that the
University's funding scheme is "neutral," in the formal sense that
it makes funds available on an evenhanded basis to secular and
sectarian applicants alike.
Ante, at 839-842. While this is
indeed true and relevant under our cases, it does not alone satisfy
the requirements of the Establishment Clause, as the Court
recognizes when it says that evenhandedness is only a "significant
factor" in certain Establishment Clause analysis, not a dispositive
one.
Ante, at 839; see
ante, at 840-841; see also
ante, at 846-848 (O'CONNOR, J., concurring);
ante, at
846 ("Neutrality, in both form and effect, is one hallmark of the
Establishment Clause");
Capitol Square Review and Advisory
Bd. v.
Pinette, ante, at 777 (O'CONNOR, J., concur-
4 To the extent the Court perceives some distinction between the
printing and dissemination of evangelism and proselytization, and
core religious activity "in [its] usual sense,"
ante, at
844, this distinction goes entirely unexplained in the Court's
opinion.
878
SOUTER, J., dissenting
ring in part and concurring in judgment) ("[T]he Establishment
Clause forbids a State to hide behind the application of formally
neutral criteria and remain studiously oblivious to the effects of
its actions .... [N]ot all state policies are permissible under the
Religion Clauses simply because they are neutral in form"). This
recognition reflects the Court's appreciation of two general rules:
that whenever affirmative government aid ultimately benefits
religion, the Establishment Clause requires some justification
beyond evenhandedness on the government's part; and that direct
public funding of core sectarian activities, even if accomplished
pursuant to an evenhanded program, would be entirely inconsistent
with the Establishment Clause and would strike at the very heart of
the Clause's protection. See
ante, at 842 ("We do not
confront a case where, even under a neutral program that includes
nonsectarian recipients, the government is making direct money
payments to an institution or group that is engaged in religious
activity");
ante, at 840-841, 844; see also
ante, at
847 (O'CONNOR, J., concurring) ("[Our] decisions ... provide no
precedent for the use of public funds to finance religious
activities").
In order to understand how the Court thus begins with sound
rules but ends with an unsound result, it is necessary to explore
those rules in greater detail than the Court does. As the foregoing
quotations from the Court's opinion indicate, the relationship
between the prohibition on direct aid and the requirement of
evenhandedness when affirmative government aid does result in some
benefit to religion reflects the relationship between basic rule
and marginal criterion. At the heart of the Establishment Clause
stands the prohibition against direct public funding, but that
prohibition does not answer the questions that occur at the margins
of the Clause's application. Is any government activity that
provides any incidental benefit to religion likewise
unconstitutional? Would it be wrong to put out fires in burning
churches, wrong to pay the bus fares of students on the way
879
to parochial schools, wrong to allow a grantee of special
education funds to spend them at a religious college? These are the
questions that call for drawing lines, and it is in drawing them
that evenhandedness becomes important. However the Court may in the
past have phrased its line-drawing test, the question whether such
benefits are provided on an evenhanded basis has been relevant, for
the question addresses one aspect of the issue whether a law is
truly neutral with respect to religion (that is, whether the law
either "advance[s] [or] inhibit[s] religion,"
County of
Allegheny v.
American Civil Liberties Union, Greater
Pittsburgh Chapter, 492 U. S. 573, 592
(1989)). In
Widmar v.
Vincent, 454 U. S. 263, 274
(1981), for example, we noted that "[t]he provision of benefits to
[a] broad ... spectrum of [religious and nonreligious] groups is an
important index of secular effect." See also
Board of Ed. of
Kiryas Joel Village School Dist. v.
Grumet, 512 U. S. 687, 702-705
(1994). In the doubtful cases (those not involving direct public
funding), where there is initially room for argument about a law's
effect, evenhandedness serves to weed out those laws that
impermissibly advance religion by channelling aid to it
exclusively. Evenhandedness is therefore a prerequisite to further
enquiry into the constitutionality of a doubtfullaw,5 but
evenhandedness goes no further. I t does not guarantee success
under Establishment Clause scrutiny.
Three cases permitting indirect aid to religion,
Mueller
v.
Allen, 463
U. S. 388 (1983),
Witters v.
Washington Dept. of
Servs.for Blind, 474 U. S. 481 (1986), and
Zobrest v.
Catalina Foothills School Dist., 509 U. S. 1 (1993), are
among the latest of those to illustrate this relevance of
evenhandedness when advancement is not so obvious as to be patently
uncon-
5 In a narrow band of cases at the polar extreme from direct
funding cases, those involving essential public benefits commonly
associated with living in an organized society (like police and
fire protection, for example), evenhandedness may become important
to ensuring that religious interests are not inhibited.
880
SOUTER, J., dissenting
stitutional. Each case involved a program in which benefits
given to individuals on a religion-neutral basis ultimately were
used by the individuals, in one way or another, to support
religious institutions.6 In each, the fact that aid was distributed
generally and on a neutral basis was a necessary condition for
upholding the program at issue.
Witters, supra, at 487-488;
Mueller, supra, at 397-399;
Zobrest, supra, at 10-11.
But the significance of evenhandedness stopped there. We did not,
in any of these cases, hold that satisfying the condition was
sufficient, or dispositive. Even more importantly, we never held
that evenhandedness might be sufficient to render direct aid to
religion constitutional. Quite the contrary. Critical to our
decisions in these cases was the fact that the aid was indirect; it
reached religious institutions "only as a result of the genuinely
independent and private choices of aid recipients,"
Witters,
supra, at 487; see also
Mueller, supra, at 399-400;
Zobrest, supra, at 10-13. In noting and relying on this
particular feature of each of the programs at issue, we in fact
reaffirmed the core prohibition on direct funding of religious
activities. See
Zobrest, supra, at 12-13;
Witters,
supra, at 487; see also
Mueller, supra, at 399-400.
Thus, our holdings in these cases were little more than extensions
of the unremarkable proposition that "a State may issue a paycheck
to one of its employees, who may then donate all or part of that
paycheck to a religious institution, all without constitutional
barrier .... "
Witters, supra, at 486-487. Such "attenuated
financial benefit[s], ultimately controlled by the private choices
of indi-
6 In
Zobrest, a deaf student sought to have an
interpreter, provided under a state Act aiding individuals with
disabilities, accompany him to a Roman Catholic high school. In
Witters, a blind student sought to use aid, provided under a
state program for assistance to handicapped persons, to attend a
private Christian college. In
Mueller, parents sought to
take a tax deduction, available for parents of both public and
nonpublic schoolchildren, for certain expenses incurred in
connection with providing education for their children in private
religious schools.
881
vidual[s]," we have found, are simply not within the
contemplation of the Establishment Clause's broad prohibition.
Mueller, supra, at 400; see also
Witters, supra, at
493 (opinion of O'CONNOR, J.).7
7
Walz v.
Tax Comm'n of City of New York, 397 U. S. 664 (1970), is
yet another example of a case in which the Court treated the
general availability of a government benefit as a significant
condition defining compliance with the Establishment Clause, but
did not deem that condition sufficient. In upholding state property
tax exemptions given to religious organizations in
Walz, we
noted that the law at issue was applicable to "a broad class of
property owned by nonprofit [and] quasi-public corporations," id.,
at 673, but did not rest on that factor alone. Critical to our
decision was the central principle that direct funding of religious
activities is prohibited under the Establishment Clause. "It is
sufficient to note that for the men who wrote the Religion Clauses
of the First Amendment the 'establishment' of a religion connoted
sponsorship, financial support, and active involvement of the
sovereign in religious activity."
Id., at 668. We emphasized
that the tax exemptions did not involve the expenditure of
government funds in support of religious activities. "The grant of
a tax exemption is not sponsorship since the government does not
transfer part of its revenue to churches but simply abstains from
demanding that the church support the state."
Id., at 675.
Moreover, we noted that in the property taxation context,
"exemption[s] creat[e] only a minimal and remote involvement
between church and state and far less than taxation of churches,"
and in operation "ten[d] to complement and reinforce the desired
separation insulating" church and state, id., at 676; and that
religious property tax exemptions have been in place for over 200
years without disruption to the interests represented by the
Establishment Clause, id., at 676-680.
JUSTICE THOMAS'S assertion, that "[a] tax exemption in many
cases is economically and functionally indistinguishable from a
direct monetary subsidy,"
ante, at 859 (concurring opinion)
(footnote omitted), assumes that the "natural" or "correct" tax
base is so self-evident that any provision excusing a person or
institution from taxes to which others are subjected must be a
departure from the natural tax base rather than part of the
definition of the tax base itself. The equivalence (asserted by
JUSTICE THOMAS, ibid.) between a direct money subsidy and the tax
liability avoided by an institution (because it is part of the
class of institutions that defines the relevant tax base by its
exclusion) was tested and dispatched long ago by Professor Bittker
in Churches, Taxes and the Constitution, 78 Yale L. J. 1285 (1969).
JUSTICE THOMAS'S suggestion that my "reliance
882
SOUTER, J., dissenting
Evenhandedness as one element of a permissibly attenuated
benefit is, of course, a far cry from evenhandedness as a
sufficient condition of constitutionality for direct financial
support of religious proselytization, and our cases have
unsurprisingly repudiated any such attempt to cut the Establishment
Clause down to a mere prohibition against unequal direct aid. See,
e. g.,
Tilton v.
Richardson, 403 U. S., at
682684 (striking portion of general aid program providing grants
for construction of college and university facilities to the extent
program made possible the use of funds for sectarian activities); 8
Wolman v.
Walter, 433 U. S., at 252-255 (striking
funding of field trips for nonpublic school students, such as are
"provided to public school students in the district," because of
unacceptable danger that state funds would be used to foster
religion). And nowhere has the Court's adherence to the preeminence
of the no-direct-funding principle over the principle of
evenhandedness been as clear as in
Bowen v.
Kendrick,
487 U. S. 589
(1988).
Bowen involved consideration of the Adolescent Family
Life Act (AFLA), a federal grant program providing funds to
institutions for counseling and educational services related to
adolescent sexuality and pregnancy. At the time of the litigation,
141 grants had been awarded under the AFLA to
on Bittker ... is misplaced in this context,"
ante, at
860, n. 5, is not on point. Even granting that JUSTICE THOMAS'S
assertion of equivalence is reasonable, he cannot and does not deny
the fact that the Court in
Walz explicitly distinguished tax
exemptions from direct money subsidies, 397 U. S., at 675, and
rested its decision on that distinction. If JUSTICE THOMAS'S
assertion of equivalence should prevail then the
Walz Court
necessarily was wrong about a distinction critical to its holding.
JUSTICE THOMAS can hardly use
Walz coherently for support
after removing the basis on which it relies.
8 Although the main opinion in
Tilton was a plurality,
the entire Court was unanimous on this point. See 403 U. S., at
682-684 (plurality opinion); id., at 692 (Douglas, J., joined by
Black and Marshall, JJ., concurring in part and dissenting in
part);
Lemon v.
Kurtzman, 403 U. S. 602, 659-661
(1971) (opinion of Brennan, J.); id., at 665, n. 1 (opinion of
White, J.).
883
a broad array of both secular and religiously affiliated
institutions.
Id., at 597. In an Establishment Clause
challenge to the Act brought by taxpayers and other interested
parties, the District Court resolved the case on a pretrial motion
for summary judgment, holding the AFLA program unconstitutional
both on its face and also insofar as religious institutions were
involved in receiving grants under the Act. When this Court
reversed on the issue of facial constitutionality under the
Establishment Clause, id., at 602-618, we said that there was "no
intimation in the statute that at some point, or for some grantees,
religious uses are permitted."
Id., at 614. On the contrary,
after looking at the legislative history and applicable
regulations, we found safeguards adequate to ensure that grants
would not be "used by ... grantees in such a way as to advance
religion."
Id., at 615.
With respect to the claim that the program was unconstitutional
as applied, we remanded the case to the District Court "for
consideration of the evidence presented by appellees insofar as it
sheds light on the manner in which the statute is presently being
administered."
Id., at 621. Specifically, we told the
District Court, on remand, to "consider ... whether in particular
cases AFLA aid has been used to fund 'specifically religious
activit[ies] in an otherwise substantially secular setting.'''
Ibid., quoting Hunt v. McNair, 413 U. S., at 743. In giving
additional guidance to the District Court, we suggested that
application of the Act would be unconstitutional if it turned out
that aid recipients were using materials "that have an explicitly
religious content or are designed to inculcate the views of a
particular religious faith."
Bowen, 487 U. S., at 621. At no
point in our opinion did we suggest that the breadth of potential
recipients, or distribution on an evenhanded basis, could have
justified the use of federal funds for religious activities, a
position that would have made no sense after we had pegged the
Act's facial constitutionality to our conclusion that advancement
of religion was not inevitable. JUSTICE O'CONNOR'S separate
884
SOUTER, J., dissenting
opinion in the case underscored just this point: "I fully agree
... that '[p]ublic funds may not be used to endorse the religious
message.' [487 U. S.,] at 642 [(Blackmun, J., dissenting)] ....
[A]ny use of public funds to promote religious doctrines violates
the Establishment Clause."
Id., at 622-623 (concurring
opinion) (emphasis in original).
Bowen was no sport; its pedigree was the line of
Everson v.
Board of Ed., 330 U. S., at 16-18,
Board of Ed. v.
Allen, 392 U. S., at 243-249,
Tilton v.
Richardson, supra, at 678
682, Hunt
v.
McNair, supra, at 742-745, and
Roemer v.
Board
of Public Works of Md., 426 U. S., at 759-761. Each of these
cases involved a general aid program that provided benefits to a
broad array of secular and sectarian institutions on an evenhanded
basis, but in none of them was that fact dispositive. The plurality
opinion in
Roemer made this point exactly:
"The Court has taken the view that a secular purpose and a
facial neutrality may not be enough, if in fact the State is
lending direct support to a religious activity. The State may not,
for example, pay for what is actually a religious education, even
though it purports to be paying for a secular one, and even though
it makes its aid available to secular and religious institutions
alike." 426 U. S., at 747 (opinion of Blackmun, J.).
Instead, the central enquiry in each of these general aid cases,
as in
Bowen, was whether secular activities could be
separated from the sectarian ones sufficiently to ensure that aid
would flow to the secular alone.
Witters, Mueller, and
Zobrest expressly preserve
the standard thus exhibited so often. Each of these cases
explicitly distinguished the indirect aid in issue from contrasting
examples in the line of cases striking down direct aid, and each
thereby expressly preserved the core constitutional principle that
direct aid to religion is impermissible. See
Zobrest, 509 U.
S., at 11-13 (distinguishing
Meek v.
Pittenger,
421 U. S. 349
(1975), and
School Dist. v.
Ball, 473 U. S. 373 (1985), and
noting that" '[t]he State may not grant aid to a
885
religious school, whether cash or in kind, where the effect of
the aid is "that of a direct subsidy to the religious school"''')
(quoting
Witters, 474 U. S., at 487); see also
ibid.;
Mueller, 463 U. S., at 399. It appears that the University
perfectly understood the primacy of the no-direct- funding rule
over the evenhandedness principle when it drew the line short of
funding "an[y] activity which primarily promotes or manifests a
particular belief(s) in or about a deity or an ultimate reality." 9
App. to Pet. for Cert. 66a.
9 Congress apparently also reads our cases as the University
did, for it routinely excludes religious activities from general
funding programs. See,
e. g., 20 U. S. C. § 1062(b) (federal
grant program for institutions of higher education; "[n]o grant may
be made under this chapter for any educational program, activity,
or service related to sectarian instruction or religious worship,
or provided by a school or department of divinity"); 20 U. S. C. §
1069c (certain grants to higher education institutions "may not be
used ... for a school or department of divinity or any religious
worship or sectarian activity ... "); 20 u. S. C. § 1132c-3(c)
(1988 ed., Supp. V) (federal assistance for renovation of certain
academic facilities; "[n]o loan may be made under this part for any
educational program, activity or service related to sectarian
instruction or religious worship or provided by a school or
department of divinity or to an institution in which a substantial
portion of its functions is subsumed in a religious mission"); 20
U. S. C. § 1132i(c) (grant program for educational facilities; "no
project assisted with funds under this subchapter shall ever be
used for religious worship or a sectarian activity or for a school
or department of divinity"); 20 U. S. C. § 1213d ("No grant may be
made under this chapter for any educational program, activity, or
service related to sectarian instruction or religious worship, or
provided by a school or department of divinity"); 25 U. S. C. §
3306(a) (1988 ed., Supp. V) (funding for Indian higher education
programs; "[n]one of the funds made available under this subchapter
may be used for study at any school or department of divinity or
for any religious worship or sectarian activity"); 29 U. S. C. §
776(g) (grants for projects and activities for rehabilitation of
handicapped persons; "[n]o funds provided under this subchapter may
be used to assist in the construction of any facility which is or
will be used for religious worship or any sectarian activity"); 42
U. S. C. § 3027(a)(14)(A)(iv) (1988 ed. and Supp. V) (requiring
States seeking federal aid for construction of centers for the
elderly to submit plans providing assurances that "the facilit[ies]
will not be used and [are] not intended to be used for sectarian
instruction or as ... place[s] for religious worship"); 42 U. S. C.
§ 5001(a)(2) (1988 ed.,
886
SOUTER, J., dissenting
C
Since conformity with the marginal or limiting principle of
evenhandedness is insufficient of itself to demonstrate the
constitutionality of providing a government benefit that reaches
religion, the Court must identify some further element in the
funding scheme that does demonstrate its permissibility. For one
reason or another, the Court's chosen element appears to be the
fact that under the University's Guidelines, funds are sent to the
printer chosen by Wide Awake, rather than to Wide Awake itself.
Ante, at 842-844.
1
If the Court's suggestion is that this feature of the funding
program brings this case into line with
Witters, Mueller,
and
Zobrest (discussed
supra, at 879-881), the Court
has misread those cases, which turned on the fact that the choice
to benefit religion was made by a nonreligious third party standing
between the government and a religious institution. See
Witters,
supra, at 487; see also
Mueller, supra, at
399-400;
Zobrest, supra, at 8-13. Here there is no thirdparty standing
between the government and the ultimate religious beneficiary to
break the circuit by its independent discretion to put state money
to religious use. The printer, of course, has no option to take the
money and use it to print a secular journal instead of Wide Awake.
It only gets the money because of its contract to print a message
of religious evangelism at the direction of Wide Awake, and it will
receive payment only for doing precisely that. The formalism of
distinguishing between payment to Wide Awake so it can pay an
approved bill and payment of the approved bill itself cannot be the
basis of a decision of constitutional law. If
Supp. V) (federal grants to support volunteer projects for the
elderly, but not including "projects involving the construction,
operation, or maintenance of so much of any facility used or to be
used for sectarian instruction or as a place for religious
worship"); 42 U. S. C. § 9858k(a) (1988 ed., Supp. V) (no child
care and development block grants "shall be expended for any
sectarian purpose or activity, including sectarian worship or
instruction").
887
this indeed were a critical distinction, the Constitution would
permit a State to pay all the bills of any religious institution;
10 in fact, despite the Court's purported adherence to the
no-direct-funding principle, the State could simply hand out credit
cards to religious institutions and honor the monthly statements
(so long as someone could devise an evenhanded umbrella to cover
the whole scheme).
Witters and the other cases cannot be
distinguished out of existence this way.
2
It is more probable, however, that the Court's reference to the
printer goes to a different attempt to justify the payment. On this
purported justification, the payment to the printer is significant
only as the last step in an argument resting on the assumption that
a public university may give a religious group the use of any of
its equipment or facilities so long as secular groups are likewise
eligible. The Court starts with the cases of
Widmar v.
Vincent, 454
U. S. 263 (1981),
Board of Ed. of Westside Community Schools
(Dist. 66) v.
Mergens, 496 U. S. 226 (1990), and
Lamb's Chapel v.
Center Moriches Union Free School
Dist., 508 U. S.
384 (1993), in which religious groups were held to be entitled
to access for speaking in government buildings open generally for
that purpose. The Court reasons that the availability of a forum
has economic value (the government built and maintained the
building, while the speakers saved the rent for a hall); and that
economically there is no difference be-
10 The Court acknowledges that "if the State pays a church's
bills it is subsidizing it," and concedes that "we must guard
against this abuse."
Ante, at 844. These concerns are not
present here, the Court contends, because Wide Awake "is not a
religious institution, at least in the usual sense of that term as
used in our case law."
Ibid. The Court's concession suggests
that its distinction between paying a religious institution and
paying a religious institution's bills is not really significant.
But if the Court is relying on its characterization of Wide Awake
as not a religious institution, "at least in the usual sense," the
Court could presumably stop right there.
888
SOUTER, J., dissenting
tween the University's provision of the value of the room and
the value, say, of the University's printing equipment; and that
therefore the University must be able to provide the use of the
latter. Since it may do that, the argument goes, it would be unduly
formalistic to draw the line at paying for an outside printer, who
simply does what the magazine's publishers could have done with the
University's own printing equipment.
Ante, at 843-844.
The argument is as unsound as it is simple, and the first of its
troubles emerges from an examination of the cases relied upon to
support it. The common factual thread running through
Widmar,
Mergens, and
Lamb's Chapel is that a governmental
institution created a limited forum for the use of students in a
school or college, or for the public at large, but sought to
exclude speakers with religious messages. See generally
Perry
Ed. Assn. v.
Perry Local Educators' Assn., 460 U. S. 37,45-46 (1983)
(forum analysis). In each case the restriction was struck down
either as an impermissible attempt to regulate the content of
speech in an open forum (as in
Widmar and
Mergens) or
to suppress a particular religious viewpoint (as in
Lamb's
Chapel, see
infra, at 897-898). In each case, to be
sure, the religious speaker's use of the room passed muster as an
incident of a plan to facilitate speech generally for a secular
purpose, entailing neither secular entanglement with religion nor
risk that the religious speech would be taken to be the speech of
the government or that the government's endorsement of a religious
message would be inferred. But each case drew ultimately on
unexceptionable Speech Clause doctrine treating the evangelist, the
Salvation Army, the millennialist, or the Hare Krishna like any
other speaker in a public forum. It was the preservation of free
speech on the model of the street corner that supplied the
justification going beyond the requirement of evenhandedness.
The Court's claim of support from these forum-access cases is
ruled out by the very scope of their holdings. While
889
they do indeed allow a limited benefit to religious speakers,
they rest on the recognition that all speakers are entitled to use
the street corner (even though the State paves the roads and
provides police protection to everyone on the street) and on the
analogy between the public street corner and open classroom space.
Thus, the Court found it significant that the classroom speakers
would engage in traditional speech activities in these forums, too,
even though the rooms (like street corners) require some incidental
state spending to maintain them. The analogy breaks down entirely,
however, if the cases are read more broadly than the Court wrote
them, to cover more than forums for literal speaking. There is no
traditional street corner printing provided by the government on
equal terms to all comers, and the forum cases cannot be lifted to
a higher plane of generalization without admitting that new
economic benefits are being extended directly to religion in clear
violation of the principle barring direct aid. The argument from
economic equivalence thus breaks down on recognizing that the
direct state aid it would support is not mitigated by the street
corner analogy in the service of free speech. Absent that, the rule
against direct aid stands as a bar to printing services as well as
printers.
3
It must, indeed, be a recognition of just this point that leads
the Court to take a third tack, not in coming up with yet a third
attempt at justification within the rules of existing case law, but
in recasting the scope of the Establishment Clause in ways that
make further affirmative justification unnecessary. JUSTICE
O'CONNOR makes a comprehensive analysis of the manner in which the
activity fee is assessed and distributed. She concludes that the
funding differs so sharply from religious funding out of
governmental treasuries generally that it falls outside
Establishment Clause's purview in the absence of a message of
religious endorsement (which she finds not to be present).
Ante, at 849-852 (con-
890
SOUTER, J., dissenting
curring opinion). The opinion of the Court concludes more
expansively that the activity fee is not a tax, and then proceeds
to find the aid permissible on the legal assumption that the bar
against direct aid applies only to aid derived from tax revenue. I
have already indicated why it is fanciful to treat the fee as
anything but a tax,
supra, at 873-874, and n. 3; see also
ante, at 840 (noting mandatory nature of the fee), and will
not repeat the point again. The novelty of the assumption that the
direct aid bar only extends to aid derived from taxation, however,
requires some response.
Although it was a taxation scheme that moved Madison to write in
the first instance, the Court has never held that government
resources obtained without taxation could be used for direct
religious support, and our cases on direct government aid have
frequently spoken in terms in no way limited to tax revenues.
E. g.,
School Dist. v.
Ball, 473 U. S., at 385
("Although Establishment Clause jurisprudence is characterized by
few absolutes, the Clause does absolutely prohibit
government-financed or government-sponsored indoctrination into the
beliefs of a particular religious faith");
Nyquist, 413 U.
S., at 780 ("In the absence of an effective means of guaranteeing
that the state aid derived from public funds will be used
exclusively for secular, neutral, and nonideological purposes, it
is clear from our cases that direct aid in whatever form is
invalid"); id., at 772 ("Primary among those evils" against which
the Establishment Clause guards "have been sponsorship, financial
support, and active involvement of the sovereign in religious
activity") (citations and internal quotation marks omitted); see
also T. Curry, The First Freedoms 217 (1986) (At the time of the
framing of the Bill of Rights, "[t]he belief that government
assistance to religion, especially in the form of taxes, violated
religious liberty had a long history").
Allowing nontax funds to be spent on religion would, in fact,
fly in the face of clear principle. Leaving entirely aside the
question whether public nontax revenues could ever be used to
finance religion without violating the endorsement
891
test, see
County of Allegheny v.
American Civil
Liberties Union, 492 U. S., at 593-594, any such use of them
would ignore one of the dual objectives of the Establishment
Clause, which was meant not only to protect individuals and their
republics from the destructive consequences of mixing government
and religion, but to protect religion from a corrupting dependence
on support from the Government.
Engel v.
Vitale,
370 U. S. 421,
431 (1962) (the Establishment Clause's "first and most immediate
purpose rested on the belief that a union of government and
religion tends to destroy government and to degrade religion");
Everson, 330 U. S., at 53 (Rutledge, J., dissenting) ("The
great condition of religious liberty is that it be maintained free
from sustenance, as also from other interferences, by the state.
For when it comes to rest upon that secular foundation it vanishes
with the resting") (citing Madison's Remonstrance "7, 8, reprinted
in
Everson, supra, at 63-72 (appendix to dissent of
Rutledge, J.));
School Dist. of Abington Township v.
Schempp, 374
U. S. 203, 259 (1963) (Brennan, J., concurring) ("It is not
only the nonbeliever who fears the injection of sectarian doctrines
and controversies into the civil polity, but in as high degree it
is the devout believer who fears the secularization of a creed
which becomes too deeply involved with and dependent upon the
government") (footnote omitted); Jefferson, A Bill for Establishing
Religious Freedom, reprinted in 5 The Founder's Constitution, at
84-85. Since the corrupting effect of government support does not
turn on whether the Government's own money comes from taxation or
gift or the sale of public lands, the Establishment Clause could
hardly relax its vigilance simply because tax revenue was not
implicated. Accordingly, in the absence of a forthright disavowal,
one can only assume that the Court does not mean to eliminate one
half of the Establishment Clause's justification.
D
Nothing in the Court's opinion would lead me to end this enquiry
into the application of the Establishment Clause any
892
SOUTER, J., dissenting
differently from the way I began it. The Court is ordering an
instrumentality of the State to support religious evangelism with
direct funding. This is a flat violation of the Establishment
Clause.
II
Given the dispositive effect of the Establishment Clause's bar
to funding the magazine, there should be no need to decide whether
in the absence of this bar the University would violate the Free
Speech Clause by limiting funding as it has done.
Widmar,
454 U. S., at 271 (university's compliance with its Establishment
Clause obligations can be a compelling interest justifying speech
restriction). But the Court's speech analysis may have independent
application, and its flaws should not pass unremarked.
The Court acknowledges,
ante, at 832, the necessity for a
university to make judgments based on the content of what may be
said or taught when it decides, in the absence of unlimited amounts
of money or other resources, how to honor its educational
responsibilities.
Widmar, supra, at 276; cf.
Perry,
460 U. S., at 49 (subject matter and speaker identity distinctions
"are inherent and inescapable in the process of limiting a
nonpublic forum to activities compatible with the intended purpose
of the property"). Nor does the Court generally question that in
allocating public funds a state university enjoys spacious
discretion. Cf.
Rust v.
Sullivan, 500 U. S. 173, 194
(1991) ("[W]hen the government appropriates public funds to
establish a program it is entitled to define the limits of that
program");
Regan v.
Taxation with Representation of
Wash., 461 U. S.
540 (1983) (upholding government subsidization decision partial
to one class of speaker)Y Ac-
11 The Court draws a distinction between a State's use of public
funds to advance its own speech and the State's funding of private
speech, suggesting that authority to make content-related choices
is at its most powerful when the State undertakes the former.
Ante, at 833-835. I would not argue otherwise, see
Hazelwood School Dist. v.
Kuhlmeier, 484 U. S. 260, 270-273
(1988), but I do suggest that this case reveals the difficulties
that can be encountered in drawing this distinction. There is a
communi-
893
cordingly, the Court recognizes that the relevant enquiry in
this case is not merely whether the University bases its funding
decisions on the subject matter of student speech; if there is an
infirmity in the basis for the University's funding decision, it
must be that the University is impermissibly distinguishing among
competing viewpoints,
ante, at 829-830, citing,
inter
alia, Perry, supra, at 46; see also
Lamb's Chapel, 508
U. S., at 392-393 (subject-matter distinctions permissible in
controlling access to limited public forum if reasonable and
viewpoint neutral);
Cornelius v.
NAACP Legal Defense
&
Ed. Fund, Inc., 473 U. S. 788, 806 (1985)
(similar);
Regan, supra, at 548.12
The issue whether a distinction is based on viewpoint does not
turn simply on whether a government regulation happens to be
applied to a speaker who seeks to advance a particular viewpoint;
the issue, of course, turns on whether the burden on speech is
explained by reference to viewpoint. See
Cornelius, supra,
at 806 ("[T]he government violates the First Amendment when it
denies access to a speaker solely
cative element inherent in the very act of funding itself, cf.
Buckley v.
Valeo, 424 U. S. 1,15-19 (1976)
(per curiam), and although it is the student speakers who
choose which particular messages to advance in the forum created by
the University, the initial act of defining the boundaries of the
forum is a decision attributable to the University, not the
students. In any event, even assuming that private and state speech
always may be separated by clean lines and that this case involves
only the former, I believe the distinction is irrelevant here
because, as is discussed
infra, this case does not involve
viewpoint discrimination.
12 I do not decide that all viewpoint discrimination in a public
university's funding determinations would violate the Free Speech
Clause. If, however, the determinations are made on the basis of a
reasonable subject-matter distinction, but not on a viewpoint
distinction, there is no violation. In a limited-access forum, a
speech restriction must be "'reasonable in light of the purpose
served by the forum'" as well as viewpoint neutral.
E. g.,
Lamb's Chapel, 508 U. S., at 392-393, quoting
Cornelius,
473 U. S., at 806. Because petitioners have not challenged the
University's Guideline as unreasonable, I express no opinion on
that or on the question whether the reasonableness criterion
applies in speech funding cases in the same manner that it applies
in limited-access forum cases.
894
SOUTER, J., dissenting
to suppress the point of view he espouses on an otherwise
includible subject"). As when deciding whether a speech restriction
is content based or content neutral, "[t]he government's purpose is
the controlling consideration."
Ward v.
Rock Against
Racism, 491 U. S.
781, 791 (1989); see also
ibid. (content neutrality
turns on,
inter alia, whether a speech restriction is
"justified without reference to the content of the regulated
speech") (internal quotation marks and citations omitted) (emphasis
deleted). So, for example, a city that enforces its excessive noise
ordinance by pulling the plug on a rock band using a forbidden
amplification system is not guilty of viewpoint discrimination
simply because the band wishes to use that equipment to espouse
antiracist views. Accord,
Rock Against Racism, supra. Nor
does a municipality's decision to prohibit political advertising on
bus placards amount to viewpoint discrimination when in the course
of applying this policy it denies space to a person who wishes to
speak in favor of a particular political candidate. Accord,
Lehman v.
Shaker Heights, 418 U. S. 298, 304 (1974)
(plurality opinion).
Accordingly, the prohibition on viewpoint discrimination serves
that important purpose of the Free Speech Clause, which is to bar
the government from skewing public debate. Other things being
equal, viewpoint discrimination occurs when government allows one
message while prohibiting the messages of those who can reasonably
be expected to respond. See
First Nat. Bank of Boston v.
Bellotti, 435
U. S. 765, 785-786 (1978) ("Especially where ... the
legislature's suppression of speech suggests an attempt to give one
side of a debatable public question an advantage in expressing its
views to the people, the First Amendment is plainly offended")
(footnote omitted);
Madison Joint School Dist. No. 8 v.
Wisconsin Employment Relations Comm'n, 429 U. S. 167,175-176
(1976) ("To permit one side of a debatable public question to have
a monopoly in expressing its views ... is the antithesis of
constitutional guarantees") (footnote omitted);
895
United States v.
Kokinda, 497 U. S. 720, 736 (1990)
(viewpoint discrimination involves an "inten[t] to discourage one
viewpoint and advance another") (plurality opinion) (citations and
internal quotation marks omitted). It is precisely this element of
taking sides in a public debate that identifies viewpoint
discrimination and makes it the most pernicious of all distinctions
based on content. Thus, if government assists those espousing one
point of view, neutrality requires it to assist those espousing
opposing points of view, as well.
There is no viewpoint discrimination in the University's
application of its Guidelines to deny funding to Wide Awake. Under
those Guidelines, a "religious activit[y]," which is not eligible
for funding, App. to Pet. for Cert. 62a, is "an activity which
primarily promotes or manifests a particular belief(s) in or about
a deity or an ultimate reality," id., at 66a. It is clear that this
is the basis on which Wide Awake Productions was denied funding.
Letter from Student Council to Ronald W. Rosenberger, App. 54 ("In
reviewing the request by Wide Awake Productions, the Appropriations
Committee determined your organization's request could not be
funded as it is a religious activity"). The discussion of Wide
Awake's content,
supra, at 865-868, shows beyond any
question that it "primarily promotes or manifests a particular
belief(s) in or about a deity ... ," in the very specific sense
that its manifest function is to call students to repentance, to
commitment to Jesus Christ, and to particular moral action because
of its Christian character.
If the Guidelines were written or applied so as to limit only
such Christian advocacy and no other evangelical efforts that might
compete with it, the discrimination would be based on viewpoint.
But that is not what the regulation authorizes; it applies to
Muslim and Jewish and Buddhist advocacy as well as to Christian.
And since it limits funding to activities promoting or manifesting
a particular belief not only "in" but "about" a deity or ultimate
reality, it applies to agnostics and atheists as well as it does to
deists and theists
896
SOUTER, J., dissenting
(as the University maintained at oral argument, Tr. of Oral Arg.
18-19, and as the Court recognizes, see
ante, at 836837).
The Guidelines, and their application to Wide Awake, thus do not
skew debate by funding one position but not its competitors. As
understood by their application to Wide Awake, they simply deny
funding for hortatory speech that "primarily promotes or manifests"
any view on the merits of religion; they deny funding for the
entire subject matter of religious apologetics.
The Court, of course, reads the Guidelines differently, but
while I believe the Court is wrong in construing their breadth, the
important point is that even on the Court's own construction the
Guidelines impose no viewpoint discrimination. In attempting to
demonstrate the potentially chilling effect such funding
restrictions might have on learning in our Nation's universities,
the Court describes the Guidelines as "a sweeping restriction on
student thought and student inquiry," disentitling a vast array of
topics to funding.
Ante, at 836. As the Court reads the
Guidelines to exclude "any writing that is explicable as resting
upon a premise which presupposes the existence of a deity or
ultimate reality,"
ibid., as well as "those student
journalistic efforts which primarily manifest or promote a belief
that there is no deity and no ultimate reality," the Court
concludes that the major works of writers from Descartes to Sartre
would be barred from the funding forum,
ante, at 837. The
Court goes so far as to suggest that the Guidelines, properly
interpreted, tolerate nothing much more than essays on "making
pasta or peanut butter cookies."
Ibid.
Now, the regulation is not so categorically broad as the Court
protests. The Court reads the word "primarily" ("primarily promotes
or manifests a particular belief(s) in or about a deity or an
ultimate reality") right out of the Guidelines, whereas it is
obviously crucial in distinguishing between works characterized by
the evangelism of Wide Awake and writing that merely happens to
express views that a given religion might approve, or simply
descriptive
897
writing informing a reader about the position of a given
religion. But, as I said, that is not the important point. Even if
the Court were indeed correct about the funding restriction's
categorical breadth, the stringency of the restriction would most
certainly not work any impermissible viewpoint discrimination under
any prior understanding of that species of content discrimination.
If a university wished to fund no speech beyond the subjects of
pasta and cookie preparation, it surely would not be discriminating
on the basis of someone's viewpoint, at least absent some
controversial claim that pasta and cookies did not exist. The
upshot would be an instructional universe without higher education,
but not a universe where one viewpoint was enriched above its
competitors.
The Guidelines are thus substantially different from the access
restriction considered in
Lamb's Chapel, the case upon which
the Court heavily relies in finding a viewpoint distinction here,
ante, at 830-832.
Lamb's Chapel addressed a school
board's regulation prohibiting the afterhours use of school
premises "by any group for religious purposes," even though the
forum otherwise was open for a variety of social, civic, and
recreational purposes. 508 U. S., at 387 (citation and internal
quotation marks omitted). "Religious" was understood to refer to
the viewpoint of a believer, and the regulation did not purport to
deny access to any speaker wishing to express a nonreligious or
expressly antireligious point of view on any subject, see
ibid. ("The issue in this case is whether ... it violates
the Free Speech Clause of the First Amendment ... to deny a church
access to school premises to exhibit for public viewing and for
assertedly religious purposes, a film series dealing with family
and child-rearing issues");
id., at 394, citing
May
v.
EvansvilleVanderburgh School Corp., 787
F.2d 1105, 1114 (CA7 1986).13
13 See also Tr. of Oral Arg. in
Lamb's Chapel v.
Center Moriches Union Free School Dist., O. T. 1992, No.
91-2024, where counsel for the school district charged with
enforcing the restriction unequivocally admitted that anyone with
an atheistic or antireligious message would be permitted to
898
SOUTER, J., dissenting
With this understanding, it was unremarkable that in
Lamb's
Chapel we unanimously determined that the access restriction,
as applied to a speaker wishing to discuss family values from a
Christian perspective, impermissibly distinguished between speakers
on the basis of viewpoint. See
Lamb's Chapel, supra, at
393-394 (considering as-applied challenge only). Equally obvious is
the distinction between that case and this one, where the
regulation is being applied, not to deny funding for those who
discuss issues in general from a religious viewpoint, but to those
engaged in promoting or opposing religious conversion and religious
observances as such. If this amounts to viewpoint discrimination,
the Court has all but eviscerated the line between viewpoint and
content.
To put the point another way, the Court's decision equating a
categorical exclusion of both sides of the religious debate with
viewpoint discrimination suggests the Court has concluded that
primarily religious and antireligious speech, grouped together,
always provides an opposing (and not merely a related) viewpoint to
any speech about any secular topic. Thus, the Court's reasoning
requires a university that funds private publications about any
primarily nonreli-
use school property under the rules of the forum.
Id., at
47,57-58. The complete exchange during the oral argument in
Lamb's Chapel went as follows:
"QUESTION: But do I understand your statement you made earlier
that supposing you had a communist group that wanted to address the
subject of family values and they thought there was a value in not
having children waste their time going to Sunday school or church
and therefore they had a point of view that was definitely
antireligious, they would be permitted, under your policy, to
discuss family values in that context?
"[COUNSEL]: Yes. Yes, Your Honor, that's correct.
"QUESTION: Counsel, in your earlier discussions with [the Court]
you indicated that communists would be able to give their
perspective on family. I-I assume from that that atheists would be
able to give theirs under your rules.
"[COUNSEL]: Yes, Your Honor."
899
gious topic also to fund publications primarily espousing
adherence to or rejection of religion. But a university's decision
to fund a magazine about racism, and not to fund publications aimed
at urging repentance before God does not skew the debate either
about racism or the desirability of religious conversion. The
Court's contrary holding amounts to a significant reformulation of
our viewpoint discrimination precedents and will significantly
expand access to limitedaccess forums. See
Greer v.
Spock, 424 U.
S. 828 (1976) (upholding regulation prohibiting political
speeches on military base);
Cornelius, 473 U. S., at 812
(exclusion from fundraising drive of political activity or advocacy
groups is facially viewpoint neutral despite inclusion of
charitable, health, and welfare agencies);
Perry, 460 U. S.,
at 49-50, and n. 9 (ability of teachers' bargaining representative
to use internal school mail system does not require that access be
provided to "any other citizen's group or community organization
with a message for school personnel");
Lehman, 418 U. S., at
304 (plurality opinion) (exclusion of political messages from forum
permissible despite ability of nonpolitical speakers to use the
forum).
III
Since I cannot see the future I cannot tell whether today's
decision portends much more than making a shambles out of student
activity fees in public colleges. Still, myapprehension is whetted
by Chief Justice Burger's warning in
Lemon v.
Kurtzman, 403
U. S. 602, 624 (1971): "in constitutional adjudication some
steps, which when taken were thought to approach 'the verge,' have
become the platform for yet further steps. A certain momentum
develops in constitutional theory and it can be a 'downhill thrust'
easily set in motion but difficult to retard or stop."
I respectfully dissent.
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