Rosenberger’s Unexplored History

Abstract

Rosenberger’s Unexplored History Rachael E. Jones (bio) Introduction Rosenberger v. Rector & Visitors of Univ. of Virginia (1995), decided by the Supreme Court a quarter-century ago,1 addressed a key tension in the religious liberties doctrine. The case represented the collision of two lines of cases. “No Aid” cases such as Lemon v. Kurtzman (1971)2 stood for the premise that funding of religion is explicitly prohibited. A conflicting line of “Equal Access” cases, beginning with Widmar v. Vincent (1981),3 stood for the proposition that the government could not exclude religious groups from open forums. Rosenberger, a challenge brought by a student at the University of Virginia, answered which line of cases would win out in this clash. Not only did Rosenberger dictate that the Equal Access cases would trump the No Aid cases, but it also extended the conclusions of the Equal Access cases. Rosenberger, for the first time, announced that the neutrality principle of equal access to resources extended not only to facilities but also to public funding. This is a crucial allowance, and reflections of this expansion can be seen in recent cases. Rosenberger also represents an important part of doctrinal trends in the religion context. As a whole, funding cases represent an area in which there has been a fair amount of doctrinal convergence, largely on the principle of neutrality.4 Rosenberger foreshad-owed this rise of the principle of neutrality. Rosenberger is also a turning point in the predominant doctrinal pivot from the position in early cases in which the key question was “to what extent is the state forbidden from supporting religion” to a point in which the key question is now “to what extent is the state required to support religion.”5 Rosenberger therefore represents an interesting inflection point as an early case asking essentially the latter question. The case is likewise a salient and early example of a trend toward a steady “unraveling” of limits on aid.6 On Shifting Ground: The Landscape Pre-Rosenberger The doctrinal framework and litigation strategy that led to Rosenberger originated years earlier. The case beginning the Supreme Court’s Establishment Clause jurisprudence in earnest was announced in [End Page 107] 1947. Everson v. Board of Education involved public funds being spent on reimbursement for busing children to parochial schools.7 Justice Hugo L. Black, writing for the Court, discussed the inherent tension at issue: first, the state is bound by a no-aid principle, but at the same time, religious individuals cannot be excluded from receiving general public benefits. The Court’s jurisprudence has developed considerably since then, but the concerns at stake in Everson inform questions still at issue today.8 While Everson marks the beginning of modern Establishment Clause jurisprudence, the specific line of cases leading up to Rosenberger began with Widmar v. Vincent. In Widmar, the University of Missouri prevented a religious group from meeting in University buildings. The district court upheld the restriction, finding that it was required by non-establishment principles.9 The Supreme Court ruled against the University, holding that once it had created a forum that was “generally open to student groups,” excluding the religious group was impermissible content-based discrimination.10 Widmar created a model litigation strategy for plaintiffs, and this basic structure would be repeated in a line of cases christened the “Equal Access” cases, including Lamb’s Chapel v. Center Moriches Union Free School District, Rosenberger, and Good News Club v. Mil-ford Central School. The Widmar formula involved challenging a public institution’s restriction on the use of its resources or facilities by raising a free speech challenge to exclusion from a public forum. Lamb’s Chapel, another installment in this line, followed blueprint. There, New York law allowed local districts to regulate after-hours use of schools but prohibited use for religious purposes.11 An evangelical church that was denied access challenged the regulation. As in Widmar, the district court upheld the regulation on Establishment Clause grounds, and as in Widmar, the Supreme Court held that the exclusion of the religious group was an impermissible violation of free speech principles.12 However, the principles of this line of cases were in some...