the First Amendment's ban on “establishing” religion. Couldn't a university permit all groups on a nondiscriminatory basis to meet—save for religious ones? Doesn't the establishment ban mean that a university may, and perhaps must, exclude certain groups?
The answer was no.
Equality
trumped
separation of church and state,
in part because permitting a group to meet on campus does not somehow turn a university itself into a chapter of that group. The “speech” and “assembly” of a group, whether political, social, or religious, are activities of the students, not the university. This is individual choice, an act of religious liberty. This was the kind of distinction that a first-year law student is trained to draw.
Distinctions count, and thoughtful analysis is necessary in order to draw reasoned, sensible distinctions. Even so, lower courts kept coming up with the wrong answer. Long after
Widmar
had been settled, schools and communities across the country kept posting “Do Not Enter” signs in the way of those planning to engage in religious speech.
Illustrative of the problem was the case of
Lamb's Chapel v. Center Moriches,
decided by the Rehnquist Court in 1993. A Long Island school district, like UMKC a decade earlier, told leaders of an evangelical church in the community, Lamb's Chapel, that they could not use school facilities after hours to show a film series of lectures by the well-known Christian psychologist James Dobson. The series, titled “Turn Your Heart toward Home,” focused from a Christian perspective on the traditional family and the importance of parental involvement in the rearing of children. In excluding Lamb's Chapel from using the facilities, the Long Island school officials made It plain that there was nothing wrong with the film series. No “obscenity” or “fighting words,” well-established categories of “unprotected” speech, were to be found in the films; indeed, to many the films were inspiring and uplifting. But the officials said, in essence, “We can't allow Dobson's programs onto school property after hours because the film series is religious in content.” Meanwhile, a wide variety of groups were permitted to make use of school facilities. To the school authorities, keeping out religious groups was what separation of church and state required.
It was the same discriminatory viewpoint all over again. Ten years after
Widmar,
the Court was now unanimous in striking down a school district's exclusionary policy. The equality principle had grown in strength, overpowering contrary interests. The Dobson film series fell entirely within the range of activities and programs that ought to be permitted as after-hours events by a school district.
Equality demanded that religious perspectives be treated the same as secular viewpoints.
But equality has not been the sole organizing principle of the Supreme Court's interpretation of the Free Speech Clause. Consider the story of Scott Southworth, who wasn't moved by the equality principle at all. He just wanted to be left alone. This was the core value of individual autonomy, which likewise informs the free-speech principle, tugging at the idea of equality. As a student at the University of Wisconsin's Madison campus in the mid-1990s, South-worth objected to paying student fees to support left-wing student organizations with which he vehemently disagreed. This compelled financial support, he felt, violated his rights of free speech. He should not be forced to subsidize the speech of groups to which he objected. Probably only in places like Madison could coerced student-fees support organizations such as the International Socialist Organization. These young socialists advocated, as was their First Amendment right, the overthrow of the government and the abolition of capitalism. In their view, the need was for “revolution, not reform.” The young socialists declared: “Reforms within the capitalist system cannot put an end to
The answer was no.
Equality
trumped
separation of church and state,
in part because permitting a group to meet on campus does not somehow turn a university itself into a chapter of that group. The “speech” and “assembly” of a group, whether political, social, or religious, are activities of the students, not the university. This is individual choice, an act of religious liberty. This was the kind of distinction that a first-year law student is trained to draw.
Distinctions count, and thoughtful analysis is necessary in order to draw reasoned, sensible distinctions. Even so, lower courts kept coming up with the wrong answer. Long after
Widmar
had been settled, schools and communities across the country kept posting “Do Not Enter” signs in the way of those planning to engage in religious speech.
Illustrative of the problem was the case of
Lamb's Chapel v. Center Moriches,
decided by the Rehnquist Court in 1993. A Long Island school district, like UMKC a decade earlier, told leaders of an evangelical church in the community, Lamb's Chapel, that they could not use school facilities after hours to show a film series of lectures by the well-known Christian psychologist James Dobson. The series, titled “Turn Your Heart toward Home,” focused from a Christian perspective on the traditional family and the importance of parental involvement in the rearing of children. In excluding Lamb's Chapel from using the facilities, the Long Island school officials made It plain that there was nothing wrong with the film series. No “obscenity” or “fighting words,” well-established categories of “unprotected” speech, were to be found in the films; indeed, to many the films were inspiring and uplifting. But the officials said, in essence, “We can't allow Dobson's programs onto school property after hours because the film series is religious in content.” Meanwhile, a wide variety of groups were permitted to make use of school facilities. To the school authorities, keeping out religious groups was what separation of church and state required.
It was the same discriminatory viewpoint all over again. Ten years after
Widmar,
the Court was now unanimous in striking down a school district's exclusionary policy. The equality principle had grown in strength, overpowering contrary interests. The Dobson film series fell entirely within the range of activities and programs that ought to be permitted as after-hours events by a school district.
Equality demanded that religious perspectives be treated the same as secular viewpoints.
But equality has not been the sole organizing principle of the Supreme Court's interpretation of the Free Speech Clause. Consider the story of Scott Southworth, who wasn't moved by the equality principle at all. He just wanted to be left alone. This was the core value of individual autonomy, which likewise informs the free-speech principle, tugging at the idea of equality. As a student at the University of Wisconsin's Madison campus in the mid-1990s, South-worth objected to paying student fees to support left-wing student organizations with which he vehemently disagreed. This compelled financial support, he felt, violated his rights of free speech. He should not be forced to subsidize the speech of groups to which he objected. Probably only in places like Madison could coerced student-fees support organizations such as the International Socialist Organization. These young socialists advocated, as was their First Amendment right, the overthrow of the government and the abolition of capitalism. In their view, the need was for “revolution, not reform.” The young socialists declared: “Reforms within the capitalist system cannot put an end to
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