| Topic: |
Religions > Atheism |
| User: |
"" |
| Date: |
15 Mar 2007 09:15:33 AM |
| Object: |
A More Porous Church-State Wall |
A More Porous Church-State Wall
http://www.insidehighered.com/news/2007/03/14/religion
Last week saw two court rulings and one campus dispute focused on church
and state. In all three cases — and in several others in the last year —
advocates for religion won, and supporters of a strict separation of church
and state lost.
Related stories
The disputes themselves are quite different, covering a public university’s
allocation of student fees (decided in federal court), the right of
“pervasively” religious colleges to have tax-exempt bonds issued on their
behalf by a state agency (decided by the California Supreme Court) and the
right to keep a cross on permanent display at a public college’s chapel
(decided in the court of public opinion). But experts on church-state
issues and higher education law see something significant in the way these
disputes and others are playing out: the long-term legal and political
impact of a 1995 decision of the U.S. Supreme Court commonly called the
Rosenberger case.
In that 5-4 decision, the Supreme Court ruled that the University of
Virginia could not deny funds to student groups just because they engage in
religious activities. In a dissent that might ring true to some dealing
with church-state conflicts over student activities today, Justice David H.
Souter predicted that the majority opinion would make “a shambles” out of
student activity questions at public colleges.
While that case was fiercely argued at the time, advocates on both sides of
church-state matters say that for a variety of reasons, its impact beyond
the University of Virginia wasn’t immediately as dramatic as it might have
been. But now, they said, the philosophy outlined in that decision is
taking hold, both judicially and politically, in a way that could leave
many colleges facing legal challenges. “I think these cases today are a
continuation of the broad direction set by Rosenberger,” said Terence J.
Pell, president of the Center for Individual Rights, which successfully
represented the Christian students at UVa who wanted student fee funds to
support Wide Awake, a publication based on their religious views.
“I think we’ve moved from an extreme and formalistic view of the First
Amendment, which created a presumption against” religion in public higher
education, toward a view that religious groups should have the same rights
as others to seek funds at state institutions, Pell said.
Barry Lynn, executive director of Americans United for Separation of Church
and State, doesn’t agree with Pell about much, and Lynn’s group was
horrified by the Rosenberger decision. But he agrees with Pell that this
year’s rulings reflect the thinking behind that ruling more than a decade
ago. “This is Rosenberger run amok,” he said.
The developments in the last week include the following:
*
A federal judge ruled that the University of Wisconsin at Madison
could not deny funds from student fees to a Roman Catholic group just
because that group violates the university’s anti-discrimination policies.
*
The California Supreme Court ruled that government agencies could
issue bonds on behalf of Azusa Pacific University and California Baptist
University even though those institutions are “pervasively sectarian.”
*
The College of William and Mary announced that it would restore to
permanent display a cross that had been removed from a historic chapel,
setting off alumni protests and the announcement that one donor was
rescinding plans to bequeath $12 million.
In the last year, meanwhile, there have been these developments:
*
A federal appeals court barred Southern Illinois University’s law
school from enforcing its anti-bias rules against a Christian legal group.
*
A federal judge’s orders led the University of North Carolina at
Chapel Hill to change its anti-bias rules so that they would not preclude
recognition of a Christian fraternity.
*
The Universities of Georgia and Missouri at Columbia, facing legal
threats, recognized Christian fraternities that had previously been
considered in violation of anti-bias policies.
*
Suits arguing that Christian groups are facing discrimination are
pending against the Georgia Institute of Technology and Savannah State
University.
In one case in the last year, a federal judge ruled that a college — in
this case the University of California’s Hastings College of Law — could
enforce its anti-bias rules against a Christian group, but that case is
being appealed, and even some legal observers who very much applaud the
decision in that case aren’t sure it will survive.
From Rosenberger to Today
Given that many public colleges have believed for years that they were on
solid ground applying their anti-bias statutes to religious groups
(effectively keeping them from the benefits accorded “recognized” student
groups) or barring funds from going to religious groups, how did the law
change under them? While the Rosenberger case cleared the way for financial
support, there was an earlier case that set the stage for Rosenberger. In a
1981 case involving the University of Missouri at Kansas City, the Supreme
Court ruled that if a public college makes its space generally available to
student groups, it can’t automatically exclude religious student groups
from this space.
In that case, though, many colleges thought that the state role was minimal
as there was not an issue of support with mandatory student fees collected
by the college. The Rosenberger case did deal with such fees and covered
much the same philosophical ground of many of the cases of the last year,
in that religious students publishing Wide Awake focused on their rights of
free expression while the university focused on separation of church and
state. The university noted throughout the case that it never tried to stop
the students from printing their paper or distributing it — that the only
line it drew was providing funds for it.
The majority decision in the case came down squarely on the side that this
was a free speech issue. “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 says it does, those student journalistic efforts which primarily
manifest or promote a belief that there is no deity and no ultimate
reality, then undergraduates named Karl Marx, Bertrand Russell, and
Jean-Paul Sartre would likewise have some of their major essays excluded
from student publications,” the ruling said.
While the dissent focused on the question of religious speech being
different from other speech, the majority opinion largely rejected that
view.
Pell of the Center for Individual Rights said that he thinks the reason so
many colleges in recent years have still focused more on church-state
separation than on free association for religious students is that
Rosenberger was such a radical departure. “This was a huge shift in
philosophy and thinking and there are many people who disagree with that
and who have been trying to find ways around that shift,” he said. “This is
part of a deeper cultural battle.”
Lynn, of Americans United, said that the principle those people are trying
to defend is one that deserves defense. “I still think religion is
different,” he said. “Rosenberger was a fundamental misunderstanding of the
Constitution. The framers wanted religion treated differently.” Lynn
stressed that this was not an anti-religious view. He said that the
Constitution granted wide freedom to religious groups to be treated with
“kid gloves” on many government matters, so, for example, government
agencies shouldn’t try to impose their rules on religious colleges and
other institutions. But such religious groups “have to support themselves”
to keep an appropriate separation.
[end excerpt]
***************************************************************
You are invited to check out the following:
The Rise of the Theocratic States of America
http://members.tripod.com/~candst/theocracy.htm
American Theocrats - Past and Present
http://members.tripod.com/~candst/theocrats.htm
The Constitutional Principle: Separation of Church and State
http://members.tripod.com/~candst/index.html
[and to join the discussion group for the above site and/or Separation of
Church and State in general, listed below]
HRSepCnS · Historical Reality SepChurch&State
http://groups.yahoo.com/group/HRSepCnS/
***************************************************************
.. . . You can't understand a phrase such as "Congress shall make no law
respecting an establishment of religion" by syllogistic reasoning. Words
take their meaning from social as well as textual contexts, which is why "a
page of history is worth a volume of logic." New York Trust Co. v. Eisner,
256 U.S. 345, 349, 41 S.Ct. 506, 507, 65 L.Ed. 963 (1921) (Holmes, J.).
Sherman v. Community Consol. Dist. 21, 980 F.2d 437, 445 (7th Cir. 1992)
.. . .
****************************************************************
USAF LT. COL (Ret) Buffman (Glen P. Goffin) wrote
"You pilot always into an unknown future;
facts are your only clue. Get the facts!"
That philosophy 'snipit' helped to get me, and my crew, through a good
many combat missions and far too many scary, inflight, emergencies.
It has also played a significant role in helping me to expose the
plethora of radical Christian propaganda and lies that we find at
almost every media turn.
*****************************************************************
THE CONSTITUTIONAL PRINCIPLE:
SEPARATION OF CHURCH AND STATE
http://members.tripod.com/~candst/index.html
****************************************************************
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