Friday, April 6, 2012

Widmar v. Vincent

To recap, Davis (1897) gave state governments practically unlimited discretion to decide what may be said in public and by whom. Hague (1939) turned things around by affirming that streets and parks are traditionally open to free speech, subject only to regulation necessary to maintain peace and order.

Widmar v. Vincent (1981) is an informative example of the way free speech rights subsequently expanded beyond streets and parks. It's also an important case for religious freedom.


Don't worry about the names Widmar and Vincent. The real contention was between the University of Missouri at Kansas City (UMKC) and an evangelical Christian student group called Cornerstone. As an officially registered group, Cornerstone used university facilities for meetings from 1973 to 1977. At this point, UMKC denied further use of facilities, citing a university regulation against use of facilities for "purposes of religious worship or religious teaching."

Cornerstone challenged this regulation in district court, and lost. Not only could the university apply such a rule, the district court concluded that UMKC must discriminate against religious groups. Between letting religious groups use the facilities and collecting an activity fee from students to fund this practice, the district court believed the Establishment Clause had been violated.

The Eighth Circuit Court of Appeals disagreed and reversed the district court's judgment. The Supreme Court sided with the Circuit Court. Cornerstone and other religious student groups were guaranteed access alongside non-religious student groups.

Forum Creation
"Through its policy of accommodating their meetings, the University has created a forum generally open for use by student groups. Having done so, the University has assumed an obligation to justify its discriminations and exclusions under applicable constitutional norms. [...]
Here UMKC has discriminated against student groups and speakers based on their desire to use a generally open forum to engage in religious worship and discussion. These are forms of speech and association protected by the First Amendment. [...] In order to justify discriminatory exclusion from a public forum based on the religious content of a group's intended speech, the University must therefore satisfy the standard of review appropriate to content-based exclusions. It must show that its regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end."
Streets and parks are public forums by tradition, but the government can choose to create additional public forums. Notice how this implies that not all government property is a public forum in which First Amendment protections are in full effect. We'll look at these categories in more detail in a future post. For now, I want to point out a complication to keep in mind: the created public forum is only open to student groups, not the general public. It's not simply that the category traditionally held by streets and parks has been extended to university meeting facilities. The term "limited public forum" is used farther down the page to describe this situation.

Strict Scrutiny

Freedom of speech is not absolute. When another "compelling state interest" is at stake, speech may still be regulated if the regulation is "narrowly drawn" to protect the other interest. This process of strict scrutiny usually ends up striking down regulation as being unnecessary or too broad.

In this case, the Establishment Clause was offered as a compelling state interest which necessitated excluding religious student groups from university facilities even if they would normally have the right to religious expression. The Court responded by saying the Establishment Clause was not being violated so no such regulation was necessary.

Nuancing the Separation of Church and State

A common but simplistic understanding of the Establishment Clause is that government may not benefit religious groups in any way. The so-called lemon test given in Lemon v. Kurtzman is the Court's three-pronged standard for these situations:

First, the [governmental policy] must have a secular legislative purpose...

Both lower courts agreed that opening a forum for student gatherings — religious and nonreligious alike — would serve a secular purpose.

second, its principal or primary effect must be one that neither advances nor inhibits religion...

However, the university and the district court argued that opening the forum to religious expression would have a primary effect of advancing religion. The Supreme Court held that any such effects are incidental — not primary — to opening a forum for all student groups. Nor could the university be reasonably understood as giving special approval of religion; no one assumes that the university approves of every political student group's viewpoint.

finally, the [policy] must not foster `an excessive government entanglement with religion.'

Since the district court didn't claim excessive entanglement was an issue, the Supreme Court didn't need to argue otherwise. Lemon test passed! The Court concluded:
"Having created a forum generally open to student groups, the University seeks to enforce a content-based exclusion of religious speech. Its exclusionary policy violates the fundamental principle that a state regulations of speech should be content-neutral, and the University is unable to justify this violation under applicable constitutional standards."
Justice Stevens Agrees, Sort Of

Though he came to the same judgment, Justice Stevens rejected the public forum reasoning of the other seven judges who supported the opinion of the Court. He snarkily pointed out the oddity of treating a forum "from which the public may be excluded" as a "public forum." In the interest of academic freedom, he believed state universities should be free to discriminate based on content in order to fulfill their educational mission as they see fit.
"Thus, I do not subscribe to the view that a public university has no greater interest in the content of student activities than the police chief has in the content of a soapbox oration on Capitol Hill."
Even so, Stevens held that universities may not engage in viewpoint discrimination within the subject matters open for discussion. And in this particular case, the university based its exclusion on faulty reasoning about the Establishment Clause. Without any valid reason given for its exclusionary policy, UMKC's policy was, he held, invalid.


Widmar v. Vincent — 454 U. S. 263 (1981)

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