Establishment Clause Jurisprudence Research Articles

The Supreme Court Corrects a Seventy-Five-Year Distortion in Establishment Clause Jurisprudence

In Kennedy v. Bremerton School District,1 the U.S. Supreme Court ruled that the Establishment Clause did not prohibit a high school football coach from offering a brief mid-field prayer at the conclusion of games. The Ninth Circuit had held that the coach’s free exercise rights had to yield to the Establishment Clause’s prohibition of conduct that might reflect a state endorsement of religion. In overturning the Ninth Circuit, the Supreme Court issued an historic and far-reaching ruling on the scope and nature of the Establishment Clause, providing the first truly clarifying decision in this area in the past seventy-five years. The Court held that the Establishment and Free Exercise Clauses were not in tension and that the Establishment Clause could not be used to limit theFree Exercise Clause. Even more profoundly, the Court rejected the use of tests that over time had become hostile to religious liberty. Finally, the Court stated that it would decide future Establishment Clause cases by consulting the historical meaning of the Clause. This Article analyzes the future impact that the Kennedy decision will exert on Establishment Clause jurisprudence.

Rosenberger’s Unexplored History

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...

Constructing a Tower of Babble: An Examination of Purpose in Establishment Clause Jurisprudence

“Purpose” is a key component of modern Establishment Clause jurisprudence. While the Supreme Court has expanded the role purpose plays in various areas of constitutional analysis over the last half-century, the Court seemingly continues to muddy the waters as to purpose’s proper place in Establishment Clause cases. This Comment focuses on the function and operation of purpose in Establishment Clause cases in order to probe the complications and obstacles inherent to this area of constitutional law. By constructing and applying an analytical framework that examines modern Establishment Clause cases through the lenses of “conceptions of purpose,” “evidence of purpose,” and “indicia of impermissible purpose,” this Comment provides critical takeaways about the development and current state of the Establishment Clause—as well as potential future outcomes in these cases. Ultimately, the dispositive consideration in Establishment Clause cases is the utilization and weight given by individual Justices in any given case to the factors discussed in this Comment’s analytical framework. This conclusion demonstrates the judge-dependent nature of these cases and the value certain Justices place on the institutional legitimacy of the Supreme Court and the judicial branch as a whole.

Forgotten Federal-Missionary Partnerships: New Light on the Establishment Clause

Americans have long disputed whether the government may support religious instruction as part of an elementary education. Since Everson v. Board of Education (1947), the Supreme Court has gradually articulated a doctrine that permits states to provide funds, indirectly through vouchers and in some cases directly through grants, to religious schools for the nonreligious goods they provide. Unlike most other areas of Establishment Clause jurisprudence, however, the Court has not built this doctrine on a historical foundation. In fact, in Trinity Lutheran v. Comer (2017), the dissenters from this doctrine were the ones to rely on the founding-era record. Intriguingly, the Court and scholars have largely ignored an early governmental practice that directly bears on the historical understanding of the Establishment Clause: from the Revolution through Reconstruction, the federal government partnered with missionaries to educate Native American students. At first ad hoc, the practice became a full-scale program with the Civilization Funds Act of 1819. Presidents Washington, Jefferson, Madison, and Monroe all personally participated in the partnerships. Virtually no one objected on constitutional grounds. This is the first Article to place these government-missionary partnerships in their cultural, political, and constitutional context and to thoroughly evaluate their implications for the history of disestablishment and contemporary doctrine. The Article acknowledges that multiple overlapping factors may account for why no one raised a constitutional objection to the partnerships, including factors unique to “Indian affairs.” But it argues that the dominant reason was that elite white Americans shared a paradigm of social progress that equated republicanism, Christianity, education, and civilization. The practice dramatically qualifies the conventional wisdom that the quintessential example of an “establishment of religion” was the use of public funds to support religious groups. In fact, that opposition appears to have been aimed narrowly at taxes earmarked for churches and clergy salaries. Although the implications of the practice, which was undoubtedly culturally chauvinistic, must be translated for a constitutional regime that prizes neutrality and voluntariness, this Article argues that the partnerships support the trajectory of the Court’s funding jurisprudence, with implications for Espinoza v. Montana Department of Revenue, currently pending before the U.S. Supreme Court.

Establishment Clause Standards and Standing

As Justice Thomas has correctly observed, “[our] Establishment Clause jurisprudence is in disarray.” The disarray comes in several forms. There is extensive disagreement among judges and scholars about what purpose the Establishment Clause serves. This disagreement has bled into the Supreme Court’s merits decisions in Establishment Clause cases: Over the last seventy years they have used at least six different standards to resolve such cases. Moreover, the Court has been unable to create a principled standing doctrine for Establishment Clause cases. This confusion has left lower courts and litigants struggling to interpret what they are supposed to do in Establishment Clause cases. This paper argues that the Court could resolve all of these issues if it were to adopt a uniform Establishment Clause standard that focused on whether the alleged establishment had caused political divisiveness. This standard would go some distance to resolving (or at least avoiding) the tension over the purpose of the Establishment Clause, and would give courts and litigants a clear measure to apply for both the standing and the merits inquiries.

Justiciability and Judicial Fiat in Establishment Clause Cases Involving Religious Speech of Students

Since the seminal Santa Fe Independent School District v. Doe school prayer case, courts have been inundated with constitutional claims involving student religious speech at public schools. Courts have struggled mightily with the question of whether this speech is private speech, which is free of the constraints of the Establishment Clause, or government speech, which is subject to the bounds of that clause. In this struggle, some courts have gotten lost in the maze of Establishment Clause jurisprudence and forgotten the core principles of justiciability and hierarchical precedent. Instead, they have resorted to advisory opinions, ipse dixit, or judicial fiat, which has only served to make the fundamental Establishment Clause private speech and government speech dichotomy less clear. This Article provides a close examination of two of these most egregious recent examples as a vehicle to advocate against the use of advisory opinions and judicial fiat in this area of jurisprudence. It then provides a clear foundational framework, which consists of a justiciability requirement and a precedential requirement, for the judicial evaluation of religious student speech classification claims in school law establishment cases. This framework is offered to counteract extant harmful judicial practices. These harmful approaches contribute to the continued confusion of education law Establishment Clause jurisprudence; delegitimize constitutional interpretation in this area; allow possible end runs around the Establishment Clause; harm religious liberty and sanctity; hurt the administration of the judicial system; and teach anti-democratic principles to citizens and schoolchildren. To safeguard both sides of Jefferson’s wall, courts must ensure that they comply with justiciability requirements and the doctrine of hierarchical precedent when asked to classify religious student speech as school-sponsored government speech or as pure private speech in Establishment Clause cases. This Article’s framework will allow them to do so.

Rethinking Legislative Prayer after Town of Greece: How Ceremonial Deism Would Include More and Exclude Less

Should sectarian prayer before legislative sessions be the proper practice to solemnize members of the legislature? The Supreme Court in Town of Greece v. Galloway held that the history of the practice and the non-coercive nature of the invocations allowed it to be constitutional under the Establishment Clause. This is not the most inclusive way that legislatures could begin sessions, and the Supreme Court reached the wrong conclusion when it held the practice constitutional.This Article is the first to suggest that ceremonial deist invocations would be a better alternative to sectarian legislative prayer before legislative sessions. States should protect its citizens from a government establishment of religion by utilizing less religious and more inclusive invocations. First, because states can have stricter guidelines under their own constitutions and statutes, they could protect their citizens from Establishment Clause problems by allowing ceremonial deist invocations instead of sectarian prayer. Similar to the reaction to the Supreme Court’s decision with RFRA, states could take action to protect more citizens under their own statutes. Second, because the Supreme Court misapplied the proper Establishment Clause precedent and used the Coercion Test in Town of Greece and found sectarian prayer constitutional, states should not follow that decision. State courts should utilize more established precedential tests such as the Lemon Test and the Endorsement Test to analyze legislative prayer to find it unconstitutional. Third, ceremonial deism is a constitutional alternative to sectarian prayer that would include more observers and legislators. Ceremonial deism is constitutional because of its history and ubiquity, absence of worship or prayer, absence of reference to a particular religion, and minimal religious content. Further, states should protect their citizens under their own constitutions and statutes by utilizing ceremonial deist invocations instead of sectarian prayers. Because the Supreme Court departed from long-standing precedent, states should follow the precedent and remain within Establishment Clause jurisprudence. Ceremonial deism would exclude less and include more, and it achieves the same purpose of solemnizing legislative sessions in the same way that sectarian prayer would.

Glosa do wyroku federalnego Sądu Apelacyjnego dla 4. Okręgu z 25 maja 2017 roku w sprawie International Refugee Assistance Project v. Trump, 857 F. 3D 554 (4th CIR. 2017)

The reviewed judgment refers to constitutionality of President Donald Trump’s Executive Order No. 13780, “Protecting the Nation from Foreign Terrorist Entry Into the United States”. The given legal act places temporary limits on travel to the U.S. from six predominantly Muslim countries, while the screening and vetting procedures would be reviewed. Federal Court of Appeals for the Fourth Circuit ruled that Executive Order, although “in text speaks with vague words of national security”, actually “in context drips with religious intolerance, animus, and discrimination”, thus violates the Establishment Clause of the First Amendment. The Court’s opinion is unconvincing. Firstly, the Court wrongly applied U.S. Supreme Court case law on immigrant policy. Secondly, the Court unduly considered statements made by Donald Trump during the presidential campaign to conclude that an unambiguous and religiously neutral Order was motivated by anti-islam animus. Thirdly, the Court misapplied the Establishment Clause jurisprudence to the given case. In the Author’s view, federal Court of Appeal instead of acting as a guardian of the Constitution, put itself in the position of a reviewer and censor of political activity.

The Jurisprudence of Religion in a Secular Age: From Ornamentalism to Hobby Lobby

Abstract This article considers the effects of secularization on the American constitutional law of religion. It argues that, in a secular age, religious belief becomes a matter of subjective opinion to be treated in much the same way as other opinions. Claims that religious beliefs occupy a privileged legal position become problematic, once those opinions are understood to be merely subjective. Free exercise jurisprudence tends to collapse into the jurisprudence of free speech: We protect religious speech because it is speech, not because it is religious. In establishment clause jurisprudence, endorsement becomes the focus of attention. If religious belief can never be more than a subjective opinion, then it is measured like other opinions: we want to know who supports it, not whether it is true. Thus, the endorsement test asks whether the state is asserting a religious belief as its own. Once religious belief is understood as subjective opinion, its natural place will appear to be within, not outside of, politics, for interest groups are defined by the opinions they pursue. Perhaps ironically, the increasingly visible role of religious groups in American politics is an expression not of how seriously we take religion, but of how much less serious it has become. No longer about the truth of the human condition, it is merely another opinion.

Thou Shalt Not Electioneer: Religious Nonprofit Political Activity and the Threat “God PACs” Pose to Democracy and Religion

The Supreme Court’s 2010 decision in Citizens United v. FEC invalidated a longstanding restriction on corporate and union campaign spending in federal elections, freeing entities with diverse political goals to spend unlimited amounts supporting candidates for federal office. Houses of worship and other religious nonprofits, however, remain strictly prohibited from engaging in partisan political activity as a condition of tax-exempt status under Internal Revenue Code § 501(c)(3). Absent this “electioneering prohibition,” religious nonprofits would be very attractive vehicles for political activity. These 501(c)(3) organizations can attract donors with the incentive of tax deductions for contributions. Moreover, houses of worship need not file with a government agency to begin operating and deriving tax benefits, and the IRS has shown reluctance to aggressively audit their activities. Two circuits have previously upheld the electioneering prohibition against legal challenges, but recent jurisprudential shifts expose the tax code provision to challenge under the Religious Freedom Restoration Act (RFRA), which directs courts to apply strict scrutiny to facially neutral laws that substantially burden the free exercise of religion. First, Burwell v. Hobby Lobby Stores, Inc. greatly reduced the barriers to successful RFRA claims. Second, by lifting restrictions on political speech for many other types of organizations, Citizens United magnified the burden the electioneering prohibition imposes on religious organizations. The decision also rejected compelling state interests that might have previously shielded the law from invalidation. This Note is the first analysis of the electioneering prohibition’s vulnerability in this new legal climate. Despite these significant developments, this Note ultimately concludes that the electioneering prohibition can survive RFRA challenges because the prospect for widespread use of religious organizations as conduits for political activity undermines the values reflected in Establishment Clause jurisprudence.

The Original Meaning of 'God': Using the Language of the Framing Generation to Create a Coherent Establishment Clause Jurisprudence

The Supreme Court’s attempt to create a standard for evaluating whether the Establishment Clause is violated by religious governmental speech, such as the public display of the Ten Commandments or the Pledge of Allegiance, is a total failure. The Court’s Establishment Clause jurisprudence has been termed “convoluted,” “a muddled mess,” and “a polite lie.” Unwilling to either allow all governmental religious speech or ban it entirely, the Court is in need of a coherent standard for distinguishing the permissible from the unconstitutional. Thus far, no Justice has offered such a standard.A careful reading of the history of the framing period reveals that those responsible for the initial implementation of the First Amendment were able to create a compromise that permitted the use of governmental religious speech in a way that was inclusive of all citizens, regardless of faith. Committed to creating an “American” vision of religious freedom, one that was distinct from the restrictive practices of the individual states, George Washington, Thomas Jefferson, and James Madison created a new template for public religious vocabulary. Through the use of non-sectarian, theologically equivocal language, they found a way to talk simultaneously to the most orthodox segment of the population and atheists, deists, and other members of religious minorities.My Article proposes building on the lessons of the framing period to create a workable Establishment Clause jurisprudence. If we accept that non-sectarian phrases such as “endowed by their Creator” need not divide our nation, we can modify the traditional “endorsement test.” A workable test reflecting the Framers’ wisdom would only judge governmental speech as unconstitutional if it endorsed religion in such a way “that it sends a message to non-adherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community.” Simple non-sectarian utterances, such as the Supreme Court’s invocation “God save the United States and this honorable court,” would be permitted, while the courthouse display of the Ten Commandments would be prohibited, and judges and lawyers would finally be able to rely on a usable, understandable Establishment Clause jurisprudence.

An Artifact or a Memorial: The Latin Cross and the Establishment Clause

This comment proposes a new, unified approach to practically apply the Establishment Clause to public displays of religious symbols. The use of a particularized set of factors will lead to more consistent and coherent court decisions. The proposed method is considered and applied to the integration of the Latin cross in war memorials, with a focus on the Mount Soledad Memorial in San Diego. Recently, the Second Circuit issued an opinion holding that the Cross at Ground Zero could remain where it stands in the 9/11 museum, and in doing so, the court interpreted the religious symbol in a different way than the Ninth Circuit had regarding the Mount Soledad cross. The use of the new, unified approach will at least partially relieve courts of this surmountable task of interpreting what exactly a cross means. The test will allow courts to determine whether the cross is related to the display in a way that allows the religious symbol to stand as an integrated part of a secular display. The proposed approach considers whether (1) a state actor erected the symbol; (2) the symbol had a legitimate secular purpose; (3) the history and context of the symbol supported the secular purpose; (4) the government’s use of the symbol is coercive; and (4) excessive entanglement of government and religion. These factors are designed to allow lower courts to continue using a fact-intensive analysis, but the application of these factors clarifies the analysis and the results. Most likely, the Supreme Court will chose to clarify the Establishment Clause jurisprudence, and this proposed approach incorporates pieces of each of the four tests — the Lemon Test, the Endorsement Test, the Coercion Test, and the Van Orden Test — to clarify the convoluted doctrine.

Personal Foul, Roughing the Speaker: The Illusory War between the Establishment Clause & College Football

Under the current landscape of First Amendment free speech and Establishment Clause jurisprudence, the boundaries of permissible speech at the university level has not been decided by the Supreme Court. While public employees have the right to speak out on matters of public concern and religious speech cannot be excluded from government property under the premise that it represents viewpoint discrimination, the exact boundaries of employee speech regarding religious matters is uncertain at best. Further, the Court’s Establishment Clause doctrine, although appearing to move toward adoption of the coercion test, is muddled with conflicting tests and ideologies. What happens when these rights so valuable and vital to the Constitution, intersect has not been settled by the Supreme Court. Several recent trends in collegiate football have raised serious issues regarding this uncertainty, as head coaches at major collegiate athletic programs seek to exercise their right to speak on matters of religion to players. Their speech raises Establishment Clause concerns for fear that students will be coerced to participate or acquiesce to the coach’s desires.This article proposes a method for resolving these differences. In Part I, I will analyze the background law governing public employee’s free speech claims, the intersection between the freedom of speech and the Establishment Clause, and whether coercive speech falls outside the realm of constitutional protection. In addition, I will provide background on the Court’s Establishment Clause jurisprudence regarding the Coercion test, as well as the implications of the recent case of Town of Greece v. Galloway. In Part II, I will set out the views of several Circuit Courts of Appeals on the issue. In Part III, I explain why religious speech is a matter of public concern, and why the Coercion Test represents the best tool for analyzing potential Establishment Clause violations at the university level. In Part IV, I will separately analyze the issue of prayer using the same methodology. Finally, in Part V I will set out my test for a violation with regard to employee speech in the university context, namely that the coercion test, where coercion is defined as either mandatory presence at an event, religious service, or some other instance that represents a blatant and clear violation of the Establishment Clause, or the imposition of harmful punishments or consequences for disagreement or non-participation, represents the proper test. I will then apply this test to several real life examples in the world of college football.

Should ‘Public Reason’ Developed Under US Establishment Clause Jurisprudence

John Rawls’ idea of public reason holds that comprehensive doctrines including religion should not be allowed a voice in the public square. Such ideas prevent society achieving that ‘overlapping consensus’ which is said to be a requirement for enduring peace and progress. However, the suggestion that some ideas should be excluded from public debate is anti-democratic. This article reviews Rawls’ idea of public reason’ against its US legal context and suggests it was a response to US Supreme Court decisions concerning their First Amendment. Though our framers copied most of that clause into the Australian Constitution, the High Court has interpreted it completely differently. The article concludes that Rawls’ idea of public reason does not fit in a Westminster democracy tied to parliamentary sovereignty rather than judicial review.

Should 'Public Reason' Developed Under US Establishment Clause Jurisprudence Apply to Australia?

John Rawls' idea of public reason holds that comprehensive doctrines including religion should not be allowed a voice in the public square. Such ideas prevent society achieving that 'overlapping consensus' which is said to be a requirement for enduring peace and progress. However, the suggestion that some ideas should be excluded from public debate is anti-democratic. This article reviews Rawls' idea of public reason' against its US legal context and suggests it was a response to US Supreme Court decisions concerning their First Amendment. Though our framers copied most of that clause into the Australian Constitution, the High Court has interpreted it completely differently. The article concludes that Rawls' idea of public reason does not fit in a Westminster democracy tied to parliamentary sovereignty rather than judicial review.

The Democracy We Left Behind in Greece and McCutcheon

The U.S. Supreme Court used to regularly police the line between political and economic spheres and the line between Church and State. The Court in 2014 abandoned both posts. As evidenced by McCutcheon v. FEC, the Supreme Court is not protecting democracy from creeping oligarchy served up one campaign contribution at a time. As evidenced by Town of Greece v. Galloway, the Supreme Court is not protecting democracy from creeping theocracy served up one public prayer at a time. In both areas of First Amendment law (Free Speech and Establishment Clause), the Court feigns neutrality when it is really picking sides and the side that the Court picks is the one that already has the most power. This short essay will explore how the modern Court’s Establishment Clause jurisprudence parallels its campaign finance jurisprudence and how both have the potential to create a privileged class and a second class.

An “Unfortunate Metaphor”: The Establishment Clause Jurisprudence of the Vinson Court

The difference between the kind of aid to all religions that the author is defending and the aid that might be regarded as a mark of “multiple establishment” may be that in the latter case the state goes out of its way to aid churches for their own sake, whereas in the former case the state finds itself involved in activities, such as education, in which the churches have a special stake and it may therefore seek to arrive at some adjustment that limits the injury to the interests for which the churches stand. Interpretations of the separation of church and state that rule out such adjustments on a priori grounds are unfair and are inimical to the free exercise of religion.1

Lynch v Donnelly and the Endorsement Test

This brief Article discusses Lynch v. Donnelly, where the Court, addressing for the first time the constitutionality of a governmental display of a religious symbol, held that a city did not violate the Establishment Clause by including a creche in its annual Christmas display. With this ruling, the Court shifted its Establishment Clause jurisprudence away from a strict separation approach that had been articulated in Everson v. Board of Education and later incorporated into Lemon v. Kurtzman. A vital ingredient in the Lynch legacy is Justice O’Connor’s concurrence, in which she proposed a new Establishment Clause test. Justice O’Connor’s endorsement test suggested that a governmental accommodation of religion would not violate the First Amendment unless the government intends or is perceived to endorse religion.

Lemon v Kurtzman and the Court's Establishment Clause Jurisprudence

This Article discusses the Lemon test used to determine Establishment Clause violations. The three-part Lemon test was an early test articulated by the Court and, after much criticism, was subsequently modified in various ways. This article examines how the Lemon test evolved, how it was applied, and what criticisms were levied against it.

Widmar Versus Vincent and the Protection of Religious Speech in a Public Forum

This brief article discusses the holding in Widmar v. Vincent, as well as the legacy of Widmar, especially in terms of how it limited the use of the Establishment Clause to deny a public forum to religious groups. At issue in Widmar was the right of a student religious group not to be discriminatorily denied access to educational facilities that were otherwise open to non-religious student organizations. This denial of access reflected a content-based discrimination against religious speech. Furthermore, the state’s interest in avoiding an Establishment Clause violation could not justify the discrimination, since, in fact, no violation would occur if the religious group was given access to university facilities. By incorporating into its Establishment Clause jurisprudence, a public forum analysis that examined the effect of government action on expressive freedoms, the Widmar Court issued a powerful precedent for protecting religious liberty in a public forum.