Widmar v. Vincent
454 US 263 (Decided December 8, 1981)
Bill Long
In this 1981 decision, the Court affirmed (8-1) the 8th Circuit Court of Appeals and held that refusal of equal access to use of public university facilities by an avowedly Christian student group violated the fundamental principle that a state regulation of speech should be content-neutral. In reaching its decision, the Court held that an "equal access" policy would not offend the Establishment Clause of the First Amendment.
The Facts
The University of Missouri, Kansas City (UMKC), had a policy making facilities generally available for activities of registered student groups. From 1973-77 an Evangelical Christian group was permitted to use on-campus facilities for their programs but, in 1977, the University informed the group that they could no longer use the facilities because it conflicted with a Board of Curators policy prohibiting campus facilities (apart from a chapel on occasion) to be used "for purposes of religious worship or religious teaching." While the District Court upheld the regulation as required by the Establishment Clause, but the Circuit Court analyzed the matter differently, and concluded that the regulation was a content-based restriction against religious speech which had no compelling justification. The Circuit Court further held that an "equal access" plan would not violate the Establishment Clause, because, under the Lemon tests, the purpose and effect would be neutral, and no entanglement could be demonstrated.
The Supreme Court's Decision
I have taken time to describe the Circuit Court's casting of the problem because their analysis became the framework for the Court's analysis. The Court first looked at the University policy of providing facilities to students as a kind of provision of public forum for speech. Therefore, under the Court's precedents, the University could not discriminate based on the content of such speech in a public forum unless its discrimination served a compelling state interest and was narrowly tailored to achieve that end.
The compelling interest claimed by UMKC was its interest in maintaining the separation of church and state as mandated by the Establishment Clause. But, would an "equal access" policy violate the Establishment Clause? The Court then decided to subject an equal access policy, which really was not at issue in the case, to the three-pronged Lemon test to divine if it would pass constitutional muster. The thought behind the Court's reasoning seemed to be that if an "equal access" provision was allowable, then the current UMKC policy was not narrowly tailored.
The secular purpose and entanglement problems were quickly addressed, and the University rested most of its case on the "primary effect test," to the effect that allowing religous groups to share a limited public forum would have the "primary effect" of advancing religion.
While recognizing that an equal access program would have the possible and even foreseeable effect that religious groups would benefit from access to University facilities, such "incidental" benefits did not violate the primary effect test. An open forum approach did not confer state imprimatur on religious sects and such a policy would also benefit the 100 or so other student groups which vied for space and recognition at UMKC. Thus, in the final analysis, the approach used by UMKC to try to avoid the shoals of an Establishment Clause problem really ended up being more widely tailored than necessary. The University was still able to establish reasonable time, place and matter regulations for student organization meetings, and it could even exclude First Amendment activity that violate reasonable campus rules, but this exclusion was an improper content-based exclusion of religious speech.
Other Opinions
Justice Stevens concurred in the judgment but felt the analysis was incorrect. He would not have utilized terms such as "compelling state interest" or "public forum" to analyze the case. He felt that the University can (and does) make content-based decisions about facility use but cannot do so if it tends to favor one religion over another. Since there was no danger of appearing to sponsor religion by permitting voluntary participation in an on-campus religious meeting, the Establishment Clause issues are nil.
Justice White, in a surprising dissent, would have framed the issue even differently. The issue was not whether an "equal access" policy would be permissible under the Establishment Clause but whether the UMKC regulation as applied was impermisible. In his view just as there is room under the Religion Clauses for state policies that may have some beneficial effect on religion, there is also room for state policies that may incidentally burden religion. There was testimony at trial that if the student group couldn't meet on campus, they would in all likelihood have to get another meeting place a few blocks distant from campus. Justice White thought that this burden was only incidental and light, and should therefore not invalidate the UMKC policy.
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