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The 'Widmar' (1981) decision and the status of religious liberty on the public college and university campus: Antecedents, effects, and prospects
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The 'Widmar' (1981) decision and the status of religious liberty on the public college and university campus: Antecedents, effects, and prospects
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Content
THE WIDMAR (1981)DECISI0N AND THE STATUS OF RELIGIOUS LIBERTY
ON THE PUBLIC COLLEGE AND UNIVERSITY CAMPUS:
ANTECEDENTS, EFFECTS, AND PROSPECTS
by
Richard Irving McNeely
A Dissertation Presented to the
FACULTY OF THE GRADUATE SCHOOL
UNIVERSITY OF SOUTHERN CALIFORNIA
In Partial Fulfillment of the
Requirements for the Degree
DOCTOR OF PHILOSOPHY
(Education)
May 1986
UMI Number; DP25115
All rights reserved
INFORMATION TO ALL USERS
The quality of this reproduction is dependent upon the quality of the copy submitted.
In the unlikely event that the author did not send a complete manuscript
and there are missing pages, these will be noted. Also, if material had to be removed,
a note will indicate the deletion.
Oisssftalion Pubi sNng
UMI DP25115
Published by ProQuest LLC (2014). Copyright in the Dissertation held by the Author.
Microform Edition © ProQuest LLC.
All rights reserved. This work is protected against
unauthorized copying under Title 17, United States Code
ProQuest LLC.
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UNIVERSITY OF SOUTHERN CAUFORNIA
THE GRADUATE SCHOOL
UNIVERSITY PARK
LOS ANGELES, CAUFORNIA 90089
f / S Li\,.
Ph.D.
Ed
%
This dissertation, written by
Richard Irving McNeely
under the direction of h is Dissertation
Committee^ and approved by all its members,
has been presented to and accepted by The
Graduate School, in partial fulfillment of re
quirements for the degree of
DO C TO R OF PH ILO SO PH Y
V\!C?
Dean of Graduate Studies
DdI q ........ Açr il^ ^ 11, ^ ^ 19 8 6
DISSERTATION COMMITTEE
Chairperson
ta4-.-Lç
11
TABLE OF CONTENTS
Chapter Page
I. THE PROBLEM.......................................... 1
Introduction ........................................ 1
Background of the Problem............................ 3
Statement of the Problem............................ 29
Importance of the Problem............................ 33
Purpose of the Study................................ 38
Questions to be Answered............................ 38
Historical Development: Pre-Widmar............... 39
The Widmar Decision: Rationale and Issues .... 40
Post-Widraar: The Dynamics of Campus Compliance. . 40
Assumptions of the Study............................ 41
Limitations of the Study............................ 41
Delimitations of the Study......................... 43
Research Procedures.................................. 43
Historical/Legal Methods..................... .. . 44
Survey/Interview Methods. ....................... 46
Definition of Terms.................................. 50
Higher Education Terms............................ 50
Legal Terms...................................... 53
Religious Terms .................................. 58
Organization of the Remainder of the Study........... 63
Ill
II. RELIGIOUS LIBERTY AND THE FIRST AMENDMENT:
HISTORICAL, PHILOSOPHICAL AND LEGAL DEVELOPMENTS . . . 65
The Colonial Period............................... 68
Jamestown..................................... 68
New England................................... 69
Later Religious Migration ....................... 74
The National Period: The Legacy of Jefferson and
Madison ..... ................................ 75
Thomas Jefferson.............. 77
James Madison................................. 80
The Constitutional Convention of 1787 82
The Bill of Rights............................... 85
The Fourteenth Amendment, the Concept of Incorpora
tion, and Realization of Madison's Original
Design for the First Amendment.............. 89
Evolution of First Amendment Interpretation .... 93
A New Concept of Religion.................... 93
Religious Belief versus Religious Action .... 97
Testing an Establishment Violation ............. 100
Testing a Free-Exercise Violation ............... 104
The Priority of the Free Exercise Clause .... 109
III. WIDMAR; A FIRST AND FOURTEENTH AMENDMENT ANALYSIS. . . Ill
Overview...........................................Ill
Chess V. Widmar (1979) ..... ................... 119
Background of the C a s e .............. 119
Argumentation .................................... 123
IV
Analysis and Decision of the Court ...... 124
Appraisal of the Decision..........................127
Chess V. Widmar (1980).............................. 131
Argumentation .................................... 131
Analysis and Decision of the C o u r t ...............132
Appraisal of the Decision.......................... 136
Widmar v. Vincent (1981).......... 137
Argumentation .................................... 138
Analysis and Decision of the C o u r t ...............138
Appraisal of the Decision..........................141
Concluding Observations . ....................... 143
IV. WIDMAR: THE DYNAMICS OF COMPLIANCE ............... 149
Compliance Dynamics: Implementing Widmar ........ 151
Preliminary Information ............... ..... 151
Religious Organizations on Campus ............... 152
Regulations regarding Recognized Religious Groups 157
Possible Areas of Difficulty. . ................. 165
A Synopsis and Analysis of Campus Regulations. . . . 174
University of California............................ 174
California State University ..................... 177
California Community Colleges ................... 178
Concluding Observations ............................ 181
V. RETROSPECT AND PROSPECT...................................185
Summary of the Study...................................186
V
Review of the literature............................ 186
Historical context. .............................. 188
Legal Precedent.....................................191
Societal Values Influencing Widmar ............. 194
The Survey and Interviews.............................. 200
Findings of the S t u d y ................................ 205
Conclusions.................................. 209
Recommendations.........................................213
Postscript.................................... 219
REFERENCES..........................................................221
General Sources............................................... 221
Table of Cases....................... 238
APPENDICES. .................................................' . 244
Appendix A: (Campus Religious Groups Survey) ............ 244
Appendix B: (Topic Outline for Interviews) .............. 248
Appendix C: (List of Interviewees and Institutions) . . . 250
Appendix D: (James Madison's "Memorial and Remonstrance"). 251
Appendix E: State of California Tripartite System of
of Public Higher Education Organization and
Control (Chart)............................. 257
CHAPTER I
THE PROBLEM
The law, much like life in general, is an inexact
science, so maybe its patron saint should be that
stationmaster who, when asked what time the train
was due, said: "It depends."
"Depends on what?" asked the man in a hurry.
"That, too, depends," replied the stationmaster as
he judiciously consulted his watch. . . .
Millington (1981b, p.
iii)
Introduction
Of the several important themes that command the attention of
historians of American higher education, two of them are closely
connected to the focus of this study. The first one is among the
oldest and longest sustained of these themes— the drift toward
secularism, while the other one is among the most recent— the headlong
rush toward legalism. As Hofstadter and Hardy (1952) noted, "there
can be no doubt that while the early American college was founded in
an intimate union with the church, modern higher education is
predominantly secular" (p. 3), and according to Millington (1984),
"the rapid development of what today is commonly termed higher
education law represents perhaps the fastest, most profound legal
development since Moses took his first steps up Mt. Sinai" (p. 31).
Whether for good or ill, and whether either one or both of these
trends is past its zenith— such questions are obviously matters of
2
argument. Nevertheless, these trends have not only set limits on what
the American college or university can be, they have also created
demands on what it has to be. And according to at least one observer
of the contemporary postsecondary scene, nowhere shines the academic
hubris brigher than in the general setting for this study— the public
segment of American higher education:
A principal trouble with the state university is that it cannot
clearly define the objects of the higher learning, except in a
utilitarian fashion, while a university or college founded upon
religious doctrines can define those objects, and develop
standards from them. 1 discovered this truth late, but now 1
know that it bears upon the whole problem of educational
decadence. (Kirk, 1978, p. 339)
In the end perhaps the verdict of Jencks and Riesman (1968) may
be hard to dispute: "American educators have seldom been able to give
coherent explanations for what they [are] doing" (pp. xi-xii). But
however that may be, Clark Kerr (1984), whom many consider the
philosopher of modern American higher education (see, e.g., Keller,
1983, p. 12; Levine, 1978, pp. 278-282), recently "talked with about
400 people in 40 states" (p. 2) and then concluded that "the
evangelical institutions of this country . . . constitute the most
successful individual segment of American higher education" today, and
for a variety of reasons: "They have more students than ever before,
more gifts than ever before; employers are taking their graduates,
often hiring them before commencement day. In these institu
tions, . . . there is a very great sense of purpose" (p. 4).
Such talk, of course, carries some loud implications, and thus it
seems particularly timely and significant to examine how religion has
been faring in the public segment of higher education after the
3
Supreme Court's recent decision in Widmar v. Vincent (1981), billed in
advance as the big showdown over student rights to air religious
doctrines on the public campus. But such showdowns, to be sure, do
not develop full blown from the simple emergence of a court case.
Accordingly, some additional preliminaries are in order.
Background of the Problem
The First Amendment to the United States Constitution opens with
the brief, emphatic command that "Congress shall make no law
respecting the establishment of religion, or prohibiting the free
exercise thereof," the purpose of which is clearly to prevent
domination of government by religion or domination of religion by
government (see, e.g., Abraham, 1977; Miller & Flowers, 1982; Tribe,
1978). Though taken for granted by most twentieth-century Americans,
Cobb (1902) asserted that
this revolutionary principle, declarative of the complete
separation of Church from State, so startlingly in contrast with
the principles which had dominated in the past— this pure
Religious Liberty— may be confidently reckoned as of distinctly
American origin. . . . Here, among all the benefits to mankind to
which this soil has given rise, this pure religious liberty may
be justly rated as the great gift of America to civilization and
the world. . . . (p. 2)
At about the same time that Cobb so eloquently characterized
religious liberty in the United States, Mary Baker Eddy (1903) linked
Cod and the Constitution in describing her pillars of faith, while
Henry Estabrook, one of New York's most respected attorneys, intoned:
Our great and sacred Constitution, serene and inviolable,
stretches its beneficent powers over our land— over its lakes and
rivers and forests, over every mother's son of us, like the
outstretched arm of Cod himself. . . . 0 Marvellous Constitution!
Magic Parchment! Transforming Word! Maker, Monitor, Cuardian of
Mankind! (in Coldman, 1952, p. 68)
4
To be sure, Americans continue to share a rather lofty range of
affinities for the Constitution (see, e.g., Bickel, 1975; Cord, 1982),
often viewing that "Magic Parchment," one might say, as a sacred
document. Yet the Constitution does not speak for itself nor do any
two people read quite the same thing into its words. As Commager
(1966) observed, while it is "a document of some six thousand
carefully chosen words, simple, lucid, logical," if one asks, "Does
the Constitution speak for itself?" the answer must be, "Clearly it
does not," because "if it did we should not need the 375 volumes of
Supreme Court Reports to explain and interpret it, nor would learned
and upright [justices] on the Supreme Court," he continued, "so
frequently disagree about the meaning of such phrases as. . .'general
welfare,' 'necessary and proper,' and 'due process of law'" (p. 50).
What is more, in all of this one gets an inkling of two
significant features of American politics in action, both of which
have symbolic religious overtones but generally struggle against one
another in continuing conflict. First, if one accepts the concept of
religion as "a collection of beliefs, symbols, and rituals with
respect to sacred things and institutionalized in a collectivity"
(Bellah, 1968, p. 341), then there is a civil religion in this country
and its clergy are those black-robed, high-benched members of the
United States Supreme Court, "domiciled in Washington, D.C., as the
Pope is in Rome" (Millington, 1981b, p. 110). And in this respect,
note Rothenberg's (1981) observation:
Appellate judges as a group are, by nature and occupational
conditioning, lofty personalities. As Justice Neely of the West
Virginia Supreme Court has written, "a more strutting, preening,
egotistical group of prima donnas than the entire body of senior
appellate judges would be difficult to assemble, except in the
United States Senate."
Preeminent in that group are the justices of the United
States Supreme Court, [who]. . . are in positions analogous to
that of the Pope. They interpret the nuances of the Constitution
and apply them to statutes and lower court decisions. In doing
so, they face little danger of being overruled. While his
Holiness Pope John Paul II might not agree that his position is
analogous, the justices of America’s highest court always have
the last word on any subject. As one of their own. Chief Justice
Charles Evans Hughes, put it, "the Constitution is what the
[justices] say it is." (p. 17)
The second feature— and in general conflict with the former
one--is that Americans have a long history of distrusting
pronouncements from their high clergy, the seeds of which find
expression in Rudolph’s (1962) observation: "Unable to set the world
straight as Englishmen in England, the Puritan settlers . , . intended
to set it straight as Englishmen in the New World" (p. 5). And while
those Puritans "showed great zeal in deferring to God," as Rolph
(1980) put it, "along with this principle came a concommitant refusal
to bow to anything else or anything less" (p. 3).
Accordingly, somewhere between the promises of the Constitution
and Supreme Court case law, one may view some present-day Puritans of
sorts, still stalking Old Deluder, questioning, skeptical of all
authority other than the authority of the sacred scripture ( viz.,
the Constitution), demanding liberty of conscience and the promise of
equality of opportunity and individual freedom as opposed to those who
show contempt for a just social order, including law enforcement
agencies, schools and colleges, students, business, labor, the
military, and the poor, no less than the rich— all of whom on occasion
seem to outdo each other in breaking the rules and violating the
ethics that the Constitution established for society's protection.
As Stokes (1950) pointed out in his multivolume study, Church and
State in the United States: "It is one thing to secure 'rights,' a
very different thing to see that they are preserved inviolate" (p.
593). And moving closer to the major focus of this study, Millington
(1981b) implied that the First Amendment's religious guarantees can
hardly be listed among America's untarnished constitutional trophies
(if there are such things):
Ipse dixet — which would translate loosely here as, because the
First Amendment says it, it must be so— is not a phrase that
springs unbidden from the lips of legal scholars when the
Constitution’s religious guarantees come up. For one thing, the
purpose and meaning of these guarantees are like the Colorado
River, At the source they are clear and strong. Downstream they
become silty and oft-times disappear in the sand, . . , Why is
that so? The answer, my friend, lies somewhere in the divine
mystery of judicial process, (p. 112)
Though somewhat barbed, Millington's comments are far from being
mere bagatelle ; instead, his rather brief, wry commentary is packed
with the implications of present-day religious dissonance, enabling
one to perceive, for example, that the legal scholar who fails to
retain his balance on the religious stage, and the fool who loses his
equilibrium in a barroom brawl over, say, Bible reading in the public
schools, may at bottom be victims of the same vertigo. In fact when
William James described the world as a "blooming, buzzing confusion,"
it may at least cross one’s mind that James might just as well have
been describing the contemporary religious scene in the United States,
or for that matter, one of the scene's subcomponents— the debate over
the meaning of the First Amendment’s religious guarantees.
7
As is true with most controversial issues, of course, this debate
has been accompanied by the surfacing of self-interested and
emotion-laden perspectives which have become serious obstacles to
rational discussion and understanding. But however interesting or
entertaining it might be to follow up the present-day implications of
Alexis de Tocqueville’s mid-1830's conclusion that "religious insanity
is very common in the United States" (in Fussell, 1984, p. 173), it
would be too large an undertaking for this study. One can nonetheless
get the idea from a few examples, beginning with some items Rothenberg
(1981) recently extracted from the media:
ITEM; A senate hearing in Washington [B.C.] on a bill to define
the origin of human life is interrupted by 6 spectators,
described as members of the Women’s Liberation Zap Action
Brigade, who stand on their chairs and shout: "Stop the hearing!
Not the church, not the state, women must decide their fate."
ITEM: Eugene F. Diamond, M.D., outgoing President of the
National Federation of Catholic Physicians’ Guilds, speaks out in
his presidential address at his organization's annual meeting
against the legalization of abortion by the United States Supreme
Court and states: "We used to be a Christian country, but now are
a pagan country."
ITEM: A fundamentalist minister in Niles, Ohio, who believes
that the Easter Bunny is a "pagan god" and who sought to burn a
giant fake rabbit in the town square in order to dramatize the
true meaning of Easter, is charged with public burning,
disorderly conduct and obstructing official business after
lighting the fire and calling some 100 persons watching from
across the street, "heathens and dummies."
ITEM: The American Civil Liberties Union takes out a full-page
newspaper ad, headlined: "If the Moral Majority Has Its Way,
You'd Better Start Praying," and warned: "the Moral Majority— and
other groups like them— think that children should pray in
school. Not just their children. Your children. But that’s
just the beginning. They want their religious doctrines enacted
into law and imposed on everyone." (pp. 1-3)
Because "religious truth" is not definable and expressible in a
precise way, the dilemma suggested by such a diversity of opinion may
never be resolved. Like love and psychotherapy, in other words,
religious truth seems to be very powerful and convincing, but somehow
slippery and difficult to pin down. On the other hand, one encounters
the compartmentalization of modern life, the hubris of bureaucrats and
"experts" with their notion that all is process and technique, devoid
of any need of a human or spiritual dimension.
Also at work here are some destructive forces of contemporary
culture, as well as those who twist their religious faith, picking and
choosing religious doctrines more compatible with a particular life
style. For example, a high school student recently told an inquiring
sociologist: "Yeah, we smoke dope all over, in our cars, walking
around before class, anytime, but that doesn’t mean that we don’t
believe in God or that we’ll let anybody put God down" (Fussell, 1984,
p. 174), As a dying W, C, Fields remarked when a friend found him
reading the Bible in his hospital bed: "Just looking for loopholes"
(Morning Briefing, 1985, p, 2),
Without piling up further examples, however, the wisdom of
Louisell’s (1976) observation is evident:
If the determinants of one’s constitutional views are largely apt
to be functions of one’s ultimate value judgments, this is
especially true in the areas of establishment and free exercise.
Here, more so than is often candidly acknowledged, a person’s
views are likely to be as much or more shaped by his attitude
toward religion, or particular religions, than by the
establishment and free exercise clauses, , , . (p, 22)
So at this juncture the inescapable conclusion is that religion
may be an argument without end. But if religion is an argument
without end, then in America the law is where one takes its
temperature. As Bickel (1975) pointed out: "Law is the principal
institution through which a society can assert its values" (p. 5); and
when it comes to disagreement over the values that Americans aspire to
live by, Alexis de Tocqueville was right on target. Upon his return
to France in 1834, he was asked if there was an American aristocracy,
and he replied affirmatively and unhesitatingly that "it occupies the
American bench and bar. Seldom is there an issue in that country
which, sooner or later, is not settled in a court of law" (in
Millington, 1979, p. 4).
Today, in fact, the United States is probably the world's most
litigious society, the scope of which may be illustrated by a few
recent cases on court dockets:
Attorneys for the Reagan administration have asked a federal
district court to dismiss a lawsuit challenging last year's
establishment of U.S. diplomatic relations with the Vatican.
Claims that the step shows preference for one religion over
others, contrary to the Constitution, are being pressed by
Americans for Separation of Church and State and several
religious groups. (Religion briefly, 1985, p. 112)
A 41 year-old California man, upset at a woman who failed to keep
a date with him, sued his would-be companion for $38 to
compensate him for sprucing up and driving 40 miles for nothing.
In 1978, a 24 year-old Boulder, Colorado man sued his parents for
$350,000, alleging that in neglecting his needs they were guilty
of [parental malpractice]. (Cannon, 1983, p. 10)
University of Colorado students say a member of the Board of
Regents is out of touch with the times for , , . saying the
university has no business sponsoring the Women's Orgasm Concern
Group. . . . "What gives him the right to classify certain
programs as frills?" said a junior who serves on a campus health
advisory board. "What students are looking for today is very
different than 20 years ago". . . . The students plan to sue.
(The '80s, 1982, p. A5)
In a petition for a writ of habeus corpus extraterrestrial, a
10
group called "Citizens Against UFO Secrecy" alleged that the U.S.
government is maintaining secret custody over one or more
occupants of crash-landed UFO’s, contending that this is
tantamount to their detention and prosecution by U.S. officials.
. . . The group claimed the detention illegal and wants them
released. . . . (E.T., 1983, p. 25)
In a St. Louis Cardinals-Washington Redskins football game,
referees ruled that a Cardinal receiver held a pass long enough
in the end zone before dropping it to score the winning
touchdown. A group of Redskin fans went to federal court to try
to have the disputed call overturned. (Cannon, 1983, p. 11)
And on a more serious note, in what is believed to be the
nation’s first "clergy malpractice suit," the parents of a 24 year-old
Burbank, California man, who in 1979 committed suicide after receiving
spiritual counseling, have sued their son’s church and four of its
pastors, alleging that the pastors had intensified their son’s guilt
and anxiety through inept counseling and by discouraging him from
seeking psychiatric help (Chandler, 1984, p. 11). The case was
dismissed by the presiding judge in May, 1985,
While most, if not all, of these cases would have been
inconceivable a few decades ago, Goldman and Sarat (1978) referred to
the current litigious storm as social development:
Variations in the amount of litigation is a function of changes
in the level of complexity, differentiation, and scale of the
society in which courts operate. Increased reliance on courts to
process disputes results from changes in the nature of typical
social relationships that appear to accompany processes of social
development and changes in the structure of society, (p. 55)
And Cannon (1983) said much the same thing, but with a slightly
different twist:
Litigiousness appears the symptom of . . . basic changes in
American attitudes toward community. The breakdown in community
consensus, shown in our churches, schools, and neighborhood
organizations has brought a greater emphasis on adversarial
procedure. Likewise, there is less trust in the nonlegal dispute
11
resolution forums that were once at the heart of our sense of
community, (p. 11)
But at this point one may still feel like a dancer without a
choreographer, knowing all the moves but unable to match them to the
music the judiciary makes, especially when it is addressing the
"establishment of religion" and "free exercise" clauses of the First
Amendment. As a next step, therefore, it should be helpful to note an
observation from the distinguished jurist, Learned Hand. He observed
that the Federal Constitution and its Bill of Rights (the first 10
amendments)
are the altogether human expression of the will of the state
conventions that ratified them; that their authority depends on
the sanctions available to enforce them; and their meaning is to
be gathered from the words they contain, read in the historical
setting in which they were uttered, (in Rothenberg, 1981, p. 12)
Ultimately, of course, the United States Supreme Court has the
"last word" in the adjudication process. As Justice Robert Jackson
(1955) noted; "The people have seemed to feel that the Supreme Court,
whatever its defects, is still the most detached, dispassionate, and
trustworthy custodian that our system affords for the translation of
abstract into constitutional commands" (p. 23). And Justice Rutledge,
in Everson v. Board of Education (1947), asserted that the importance
of history can hardly be overestimated in the Court’s interpretation
of the First Amendment’s religious clauses: "In the documents of the
times, particularly of Madison . . . [and] Jefferson . . . is to be
found irrefutable confirmation of the Amendment’s sweeping content"
(p. 34).
To be sure, while the disposition to protect religious liberty
12
was widespread throughout the colonies, the great impetus and
leadership for the movement came from Virginia, Virginia's
Constitution of 1776, for example, guaranteed religious freedom:
"[A]ll men are equally entitled to the free exercise of religion,
according to the dictates of conscience; and it is the mutual duty of
all to practice Christian forebearance, love, and charity, towards
each other" (Rothenberg, 1981, p. 11); but it soon became apparent
that the state was divided concerning whether this meant that the
state could or could not aid by public funds the several religious
denominations in the state.
Of course the struggle for separation of church and state was a
part of the larger Revolutionary War struggle for separation from
England; the Church of England was closely identified with the crown
in the minds of Americans. But in 1784, after the Revolutionary War
was over, a new religious bill involving the principle of general
assessment for religious support (i.e., multiple establishment) was
submitted to the Virginia Assembly. In the words of its chief
advocate, Patrick Henry, the purpose of the assessment bill was to
require all persons "to pay a moderate tax or contribution annually
for the support of the Christian religion, or of some Christian
church, denomination or communion of Christians, or for some form of
Christian worship" (Butts & Cremin, 1965, p. 154).
But Thomas Jefferson and James Madison led a successful fight to
defeat the assessment bill, and at the height of that struggle Madison
published his famous "Memorial and Remonstrance Against Religious
Assessments" (see Appendix D), in which he opposed multiple support
13
for all religions as vigorously as he opposed the establishment of a
single church. As Justice Rutledge pointed out in Everson v. Board of
Education (1947), "the Remonstrance is at once the most concise and
most accurate statement of the views of the First Amendment's author
concerning what is 'an establishment of religion.'" (p. 37). In fact
the Remonstrance was so central to Rutledge's own views on
nonestablishment that he had the full text of that work appended to
his opinion (see pp. 63-72 in Everson).
While writing for the majority in Everson, Justice Hugo Black
noted that in place of the defeated assessment bill, the Virginia
Assembly enacted Jefferson's Bill for Religious Liberty, the preamble
of which claimed that "to compel a man to furnish contributions of
money for the propagation of opinions which he disbelieves, is sinful
and tyrannical. . . and the statute itself mandated
[tjhat no man shall be compelled to frequent or support any
religious worship, place, or ministry whatsoever, nor shall be
enforced, restrained, molested or burthened in his body or goods,
nor shall otherwise suffer on account of his religious opinions
or belief. . . . (p. 13)
From this history Justice Black concluded that the purpose of the
establishment clause was to safeguard individual religious liberty:
[T]he provisions of the First Amendment, in the drafting and
adoption of which Madison and Jefferson played such leading
roles, had the same objective and were designed to provide the
same protection against governmental intrusion on religious
liberty as the Virginia statute, (p. 13)
Similarly, Justice Rutledge asserted that "'[e]stablishment' and 'free
exercise' were correlative and coextensive ideas, representing only
different facets of the single great and fundamental freedom," and
concluded: "With Jefferson, Madison believed that to tolerate any
14
fragment of establishment would be by so much to perpetuate restraint
upon that freedom. Hence he sought to tear out the institution not
partially but root and branch, and to bar its return forever,"
(Everson, p. 40).
But then how does one account for the fact that the first House
of Representatives, the day after it recommended the First Amendment
in its current wording to the states for ratification, passed a
resolution asking President Washington for a Thanksgiving Day
Proclamation,
recommend[ing] to the people of the United States a day of public
thanksgiving and prayer, to be observed by acknowledging, with
grateful hearts, the many signal favors of Almighty God,
especially by affording them an opportunity peaceably to
establish a Constitution of government for their safety and
happiness? (Cord, 1982, p. 51)
Madison is not recorded as having opposed the resolution, and later as
president himself, he issued similar Thanksgiving Day proclamations,
as have all the other presidents except Jefferson.
In the same week that Congress approved the First Amendment as
part of the Bill of Rights for submission to the states, it also
enacted legislation providing for paid chaplains for the House and
Senate and authorized the president to appoint and support chaplains
for the military. The fact that Madison again is not recorded as
having objected to either measure further muddies Black’s and
Rutledge’s historical analysis in Everson. Further, as Eidsmoe
(1984b) observed, "Madison served on the Congressional Committee that
recommended the establishment of chaplains" (p. 140).
What is more, Jefferson, while president, approved three
15
extensions of an act first passed in 1796, "regulating the grants of
land appropriated for . . . the society of the United Brethren for
propagating the gospel among the heathen" (Cord, 1982, p. 41).
Jefferson, although he refused to issue Thanksgiving proclamations,
saw nothing unconstitutional in the act or in its several extensions,
just as he saw nothing unconstitutional in the treaty with the
Kaskaskia Indians in 1803:
The United States will give annually for seven years one hundred
dollars towards the support of a [Catholic] priest, who will
engage to perform for the said tribe the duties of his office and
also to instruct as many of their children as possible in the
rudiments of literature. And the United States will further give
the sum of three hundred dollars to assist the said tribe
in the erection of a church, (Cord, 1982, p. 38)
All of this brings to mind Millington’s (1980) reservation that
"history is a subject so complex and filled with so many conflicting
explanations that it all seems like professors competing with one
another at a cocktail party" (p. 2), especially as one further notes
some recent observations by Chief Justice Burger, in Lynch v. Donnelly
(1984), that religious "hymns and carols are [still] sung and played
in public places, and . . . Congress and state legislatures [continue
to] open public sessions with prayers" (p. 1357), and his recognition,
with approval, of "an unbroken history of official acknowledgment by
all three branches of government of the role of religion in American
life from at least 1789" ( p. 1360), such as
the statutorily prescribed national motto "In God We Trust,". . .
which Congress and the President mandated for our currency, . . .
the language "One nation under God," as part of the Pledge of
Allegiance to the American flag, .... [and] Presidential
Proclamations and messages . . . issued to commemorate Jewish
Heritage Week, . . . and the Jewish High Holy Days. . . .
(pp. 1360-1361)
16
Now, although what has been noted so far may well be enough to
satisfy even the aficionado of complexity, from this point, both
forward and backwards, the task of grasping the Supreme Court’s
interpretation of those religious clauses may appear to be only a tad
less difficult than figuring the curvature of space. Setting aside a
nore complete analysis until later chapters, one should first note
that such actions as the enactment of laws "respecting the
establishment of religion" and the abridgement of the "free exercise
Df religion" were not prohibited on the part of the states by the
terms of the First Amendment (see, e.g., Barron v. Baltimore, 1833;
Permoli v. First Municipality of New Orleans, 1844).
As proposed by Congress in 1789 and ratified by the required
three-fourths of the states in 1791, in other words, the First
Amendment only denied the national government the power to establish a
religion or to interfere with the free exercise of religion. In fact,
it was not until 1940 in Cantwell v. Connecticut, that the Supreme
ourt found such applicability for the states: "The First Amendment
declares that Congress shall make no law respecting an establishment
Df religion or prohibiting the free exercise thereof. The Fourteenth
Amendment has rendered the legislatures of the states as incompetent
as Congress to enact such laws" (p. 303). But in spite of this broad
language, the Cantwell case was decided solely on a free exercise
question; as a result, the establishment clause was not specifically
applied to the states until Everson v. Board of Education in 1947.
The issue in Everson was whether state tax money could be used to
17
reimburse parents for the cost of transporting their children by bus
to parochial schools. But in light of some strong separationist
language— "In the words of Jefferson, the clause against establishment
of religion by law was intended to erect ’a wall of separation between
church and state’" (p. 16)— one might be justifiably surprised that
the Court ruled that reimbursement for transportation was not a
violation of the establishment clause (made applicable to the states
by the Fourteenth Amendment).
In the course of its subsequent establishment decisions,
moreover, one notes that Will’s (1984) observation contains more than
mere hyperbole: "Where the subject is ’establishment of religion,’ the
Supreme Court becomes an institutional pretzel" (p. 108). For one
thing, subsequent establishment cases followed Everson’s strict
separationist approach with varying degrees of rigidity. One year
later, for example, in McCollum v. Board of Education (1948), the
Court ruled that a plan to offer released-time religious education on
public school premises during the school day was unconstitutional,
stating that "the First Amendment has erected a wall between Church
and State which must be kept high and impregnable" (p. 212).
Four years after McCollum, however, in Zorach v. Clauson (1952),
the Court departed rather dramatically from the separationism of the
Everson and McCollum rhetoric, holding that a released-time program in
New York was constitutional because this one was provided away from
school premises and there was no coercion to get the children to
attend. Moreover, while Justice Black delivered the opinions in
Everson and McCollum, in Zorach Justice Douglas delivered the opinion.
18
and in so doing he emphasized that a strict "wall of separation" was
unavoidably illusory:
The First Amendment, however does not say that in every and all
respects there shall be a separation of Church and State.
Rather, it studiously defines the manner, the specific ways, in
which there shall be no concert or dependency one on the other.
That is the common sense of the matter. Otherwise the state and
religion would be aliens to each other— hostile, suspicious and
even unfriendly. Churches could not be required to pay even
property taxes. Municipalities would not be permitted to render
police or fire protection to religious groups. Policemen who
helped parishioners into their places of worship would violate
the Constitution. Prayers in our legislative halls; the appeals
to the Almighty in the messages of the Chief Executive; the
proclamations making Thanksgiving Day a holiday; "so help me God"
in our courtroom oaths— these and all other references to the
Almighty that run through our laws, our public rituals, our
ceremonies would be flouting the First Amendment. A fastidious
athiest or agnostic could even object to the supplication with
which the Court opens each session: "God save the United States
and this honorable Court." (pp. 312-313)
So Jefferson's and Black’s "impregnable wall" was not so
impregnable after all, or so it seemed for another 10 years. Then in
Engel v. Vitale (1952), the Supreme Court decided the first of the
prayer cases, resulting in a return to the hard-line separationist
approach articulated, but not implemented, by Everson. But while
history may exist to be revised, at least the shift was not
unexpected; Justice Black authored the majority opinion in Engel.
Thus at this point it would be more accurate to say that Jefferson's
metaphoric "wall of separation" had become "as winding as the famous
serpentine wall" he designed for the University of Virginia (in
McCollum, p.238). In any event, this much-argued-over establishment
approach was on its third bounce, having gone from strict to flexible
and back to strict again, when in Abington School District v. Schempp
(1963), the Court ruled that a Pennsylvania program involving
19
compulsory prayer and Bible reading in its public schools was
unconstitutional, and in so doing Justice Clark set forth yet another
establishment approach (later to be viewed as two of three tests) that
must be applied to establishment cases:
The test may be stated as follows: what are the purpose and
primary effect of the enactment? If either is the advancement or
inhibition of religion, then the enactment exceeds the scope of
legislative power as circumscribed by the Constitution. That is
to say that to withstand the strictures of that Establishment
Clause there must be a secular legislative purpose and a primary
effect that neither advances nor inhibits religion, (p. 222)
The third part of the test, that of nonentanglement, was first
introduced in Walz v. Tax Commission (1970), a Supreme Court case that
upheld the constitutionality of tax exemption for churches. In
writing the decision of the Court, Chief Justice Burger stated:
Determining that the legislative purpose of tax exemption is not
aimed at establishing, sponsoring, or supporting religion does
not end the inquiry, however. We must also be sure that the end
result— the effect— is not an excessive government entanglement
with religion. The test is inescapably one of degree. (p. 674)
While one is left in somewhat of a muddle as to what "excessive
governmental entanglement with religion" means, this part was followed
by a vague allusion to the "hazards of government supporting churches"
(p. 673), and there Burger let the matter lie. In his concurring
opinion, however. Justice Harlan picked up on the entanglement issue
also, and noted: "What is at stake as a matter of policy is
preventing that kind and degree of governmental involvement in
religious life that, as history teaches us, is apt to lead to strife
and frequently strain a political system to the breaking point" (p.
6 9 4 ).
20
Then, in Lemon v. Kurtzman (1971), what was to become known as
the "tripartite test" was formally announced: "First, the statute
must have a secular legislative purpose; second, its principal or
primary effect must be one that neither advances nor inhibits
religion. . .; finally, the statute must not foster ’an excessive
entanglement with religion”’ (pp. 612-613).
At issue in Lemon were Rhode Island and New York statutes which
provided direct financial aid to parochial schools. In his opinion
for the Court, Burger quickly concluded that the purpose behind these
statutes was not to advance religion but rather to enhance the quality
of secular education afforded students in church-affiliated schools.
He then skipped over the second part of the test, that of primary
effect, asserting that it was not needed to resolve the issue before
the Court, "for we conclude that the cumulative impact of the entire
relationship arising under the statutes in each State involves
excessive entanglement between government and religion" (pp. 613-614),
adding that ”[t]he potential for political divisiveness related to
religious belief and practice is aggravated in these two statutory
programs by the need for continuing annual appropriations and the
likelihood of larger and larger demands as costs and populations grow"
(p. 623).
Since Walz and Lemon, all three tests— "secular purpose,"
"primary effect," and "excessive entanglement"— have generally been
used in establishment clause cases. As noted in Lemon, moreover, all
three components of the "tripartite test" are independent of each
other, and thus a law may pass two of the tests, fail one, and be
21
declared unconstitutional. But rather than making the establishment
line more distinct, the "tripartite test," as Chief Justice Burger
admitted in Lemon, provides little more than "a blurred, indistinct,
and variable barrier depending on all the circumstances of a
particular relationship" (p. 614),
Adding to the potential for confusion, the Court has "repeatedly
emphasized [its] unwillingness to be confined to any [particular] test
or criterion in this sensitive area" (Lynch v. Donnelly, 1984, p.
1362; see also Court's warnings in Committee for Public Education and
Religious Liberty v. Nyquist, 1973, p. 773; and in Tilton v.
Richardson, 1971, pp. 677-678). In two recent cases, in fact, the
Court did not even apply the "tripartite test." The Court did not,
for example, find that test relevant in Marsh v. Chambers (1983),
holding solely on historical grounds that Nebraska had not violated
the establishment clause when it employed members of the clergy as
official "Legislative Chaplains" to give opening prayers at sessions
of the state legislature (p. 3336), nor did the Court consider the
"tripartite" analysis useful in Larson v. Valente (1982), where there
was substantial evidence of overt discrimination against a particular
church.
Then, too, the Supreme Court "has struggled to find a neutral
ground between the two Religion Clauses, both of which are cast in
absolute terms, and either of which, if expanded to a logical extreme,
would tend to clash with the other" (Walz v. Tax Commission, 1970, p.
668). For example, a governmental action may facilitate the "free
exercise" clause but at the same time affront the "establishment"
22
proscription (i.e., the requirement of church-state separation). On
the other hand, if the Court takes a hard-line separationist approach,
it might lead to a "war with our national tradition as embodied in the
First Amendment's guarantee of the free exercise of religion"
(McCollum V. Board of Education, 1948, pp. 211-212).
Furthermore, the problems of defining the word "religion" in the
First Amendment have grown steadily as individuals and new groups have
sought to be embraced by the Amendment's provision for freedom of
religious conscience. In Torcaso v. Watkins (1961), for instance,
Torcaso, an atheist, had been appointed to the minor state office of
notary public, but when he refused "to declare his belief in the
existence of God" (p. 489), the mandatory oath of office in Maryland,
he was consequently refused his commission. Torcaso eventually took
his case to the Supreme Court, wherein a unanimous Court invalidated
Maryland's oath requirement as an invasion of "freedom of belief and
religion" (p. 496).
The Torcaso decision is significant for several reasons. First,
it denied categorically that religious tests for office can be imposed
at any level of government. Second, it held that the First Amendment
forbids different treatment by government of believers and
nonbelievers, thus guaranteeing freedom of irréligion as well as
religion. Third, in Torcaso the Court accepted an expanded concept of
religion, emphasizing that no distinction can be shown between "those
religions based on a belief in the existence of God" (p. 495) and such
nontheistic religions as Buddhism, Taoism, Ethical Culture, and
Secular Humanism (see also McDaniel v. Paty, 1977, where the Court
23
also used the "free exercise" clause to strike down a Tennessee law
prohibiting any "minister of the gospel" or "priest" from holding
public office; and Cooper v. Pate, 1964, where the Court held that a
Black Muslim prisoner had been discriminated against because of his
religious beliefs when prison officials denied him the right to obtain
his Quran and other Muslim literature, to have visits by Black Muslim
ministers, and to attend religious services).
Like the church-state distinction, of course, the "free exercise"
line is more than a little blurred. Since 1972, for instance, there
has been the sword of Christian Echoes National Ministry v. United
States hanging over the heads of politically active religious groups;
that is, they run the risk of losing federal tax exemption if they
spend more than an insubstantial amount of time and resources in
advancing the candidacy of persons in elections or in trying to
influence legislation. But suppose a minister gets up in the pulpit
and thunders that children should have the right to pray in school,
and at the same time and in the same location, two people are running
for Congress, One is for prayer in the schools and the other one is
against it. Is the minister urging his flock to vote for the
candidate supporting prayer in the public schools? Is he not skating
dangerously close to violating the "substantial political
participation" holding in Christian Echoes?
More specifically, in Walz v. Tax Commission (1970) the Supreme
Court in effect held that tax-exemption laws passed the "establishment
clause" muster, while two years later a federal appellate court held
in Christian Echoes that the above-mentioned Internal Revenue Code
24
provision did not violate the "free exercise" clause and the Supreme
Court denied certiorari. But as Miller and Flowers (1982) observed:
In this controversy the Christian Echoes Ministry was supported
by a large number of religious groups from all across the
theological spectrum. They were, and are, concerned about two
dimensions of this relationship with the 1RS. The first is that
"substantial political participation" means whatever the 1RS says
it means. That is, there are no objective guidelines as to how
much a group may engage in political activity or advocacy before
it is in danger of losing its tax exemption. The second
dimension is the more crucial one. Does the government have the
right to set limits on the activities and speech of religious
institutions as they address public life? (p. 104)
In other words, should "churchmen whose vocation is to minister
to our moral and spiritual condition . . . keep their mouths shut on
everything that is secular"? (Greenfield, 1982, p. 120). When Jesus
drove the money changers from the temple, was that a religious act or
a political act? What about Dr. Martin Luther King's political
interventions in the South? The Roman Catholic bishops and their
pastoral letter on nuclear warfare? The various political activities
of Dr, Jerry Falwell and his Moral Majority? The Institute for
Creation Science and its battle to introduce the biblical version of
creation into the public-school science curricula? And the outspoken
efforts of both Protestant and Roman Catholic leaders urging Congress
not to approve further production and deployment of the MX missiles?
Thus the great battle is presently not one in which the
"establishment" and "free exercise" clauses are locked in conflict
with the Court, but rather the whole concept of freedom of expression
has taken the field as the protagonist for all kinds of causes
including that of religion. A formidable beginning for this
development in public education can be traced from the Tinker v. Des
25
Moines Independent Community School District (1969) decision, in which
the Supreme Court delivered its first clear statement regarding the
rights of students in relation to free expression. Though the issue
was not one directly involving religion, the principle articulated by
Justice Fortas in rendering the opinion of the Court is significant:
First Amendment rights, applied in light of the special
characterisics of the school environment, are available to
teachers and students. It can hardly be argued that either
students or teachers shed their constitutional rights to freedom
of speech or expression at the school-house gate. (p. 506)
The outcome of the decision brought forth a two-fold test as to
what would be considered "constitutionally valid reasons" for
restrictions on student rights to freedom of expression. The burden
would be on school authorities to show that the activities to be
prohibited would (1) "materially and substantially disrupt the work
and discipline of the school," or (2) would be "an invasion of the
rights of others" (p. 513).
Three years later the principles delineated in Tinker were noted
in Healy v. James (1972). Although the Healy decision involved
freedom of association, essentially the same tests as those in Tinker
were applied. Of course, other decisions of the Supreme Court have
declared that the educational milieu constitutes a public forum, and
whereas the use of the facilities of public schools of the lower
grades is very limited due to the captive audience principle, the
campuses of the college and university are to be open for the
discussion of any and all matters which pertain to the development of
the intellectual and personal growth of the students.
Justice Felix Frankfurter, writing in concurrence with the
26
Court's decision in Sweezy v. New Hampshire (1957), quoted from a
statement of the conference of senior scholars at the Open University
of South Africa:
In a university knowledge is its own end, not merely a means to
an end. A university ceases to be true to its own nature if it
becomes a tool of Church or State or any sectional interest. A
university is characterized by the spirit of free inquiry, its
ideal being the ideal of Socrates— 'to follow the argument where
it leads.' This implies the right to examine, question, modify
or reject traditional ideas and beliefs. Dogma and hypothesis
are incompatible, and the concept of an immutable doctrine is
repugnant to the spirit of a university. The concern of its
scholars is not merely to add and revise facts in relation to an
accepted framework, but to be ever examining and modifying the
framework itself, (pp. 262-263)
This same concept was echoed in Keyishian v. Board of Regents
(1967)— that is, the classroom is the "marketplace of ideas" and that
this principle should extend to the whole campus environment (p. 603).
Exchange of viewpoint is not only necessary, the Court ruled, but
demanded if there is to be realized the raison d' etre for the
university. If this is true in the political arena (for in many
cases, it was this point which was particularly challenged in the
courts), then why not allow an exchange of religious viewpoints both
in the formal and informal settings of the campus atmosphere? This
was the question which the adherents of varied religious organizations
began to ask; that is, can the university be a forum for religious
ideas?
What constitutes a public forum and what limitations pertain to
it were carefully delineated in Police Department of the City of
Chicago V. Mosley (1972), a case involving a City of Chicago ordinance
prohibiting picketing on a public way within 150 feet of any school
27
building during school hours. But even though the ordinance exempted
peaceful labor picketing from the prohibition, it was struck down
because the exemption was "content-based." Since picketing is a form
of expression protected by the First Amendment, the Court stated;
[A]hove all else, the First Amendment means that government has
no power to restrict expression because of its message, its
ideas, its subject matter, or its content. . . . Once a forum is
opened up to assembly or speaking by some groups, government may
not prohibit others from assembling or speaking on the basis of
what they intend to say. Selective exclusions from a public
forum may not be based on content alone, and may not be justified
by reference to content alone, (pp. 95-96)
Howarth and Connell (1981) further noted:
Locations such as public streets, sidewalks, and parklands have
been held to be quintessential public forums because of their
historic association with the broadest scope of first amendment
activities. Other public facilities have achieved the special
status of public forums as a result of their specific adoption or
designation by authorities as a place for exchange of views among
members of the public. Finally, public facilities that have been
created for purposes closely linked to expression, although not
for unrestricted public interchange of ideas, have been
recognized as semi-public forums, (p. 115)
Subsequently, the distribution of religious literature in public
places (Heffron v. International Society for Krishna Consciousness,
1981), the celebration of religious ceremonies in public places such
as that conducted by Pope Paul II in the Washington Mall (O'Hair v.
Andrus, 1981), and conducting of Bible studies in public places
(Fowler v. Rhode Island, 1953; Kunz v. New York, 1951; Niemoko v.
Maryland, 1951; and Poulos v. New Hampshire, 1953) were first steps in
the most recent decisions affecting the college campuses.
Until 1981, the most celebrated case involving religious
expression on the university campus was Keegan v. University of
Delaware (1975). In this case, the university prohibited the student
2 8 |
use of commons rooms for worship services, stating that the
prohibition was based on the Establishment Clause. The prohibition
was overturned by the Supreme Court of Delaware and the Supreme Court
of the United States refused to review the decision. The conclusion
of the Delaware Supreme Court was that
[the] University could not support its absolute ban of all
religious worship on the theory that, without such a ban.
University policy allowing all student groups, including
religious groups, free access to dormitory common areas would
necessarily violate the Establishment Clause, (p. 16)
Yet the Keegan case was in significant contrast to a similar case
decided in the State of Washington (Dittman v. Western Washington
University, 1980), in which the students’ action was dismissed
because "failure to adhere to the challenged policy would have a
primary effect of advancing religion by ’placing the imprimatur of
government upon the religious activities being conducted in the
facilities’" (p. 4).
But there was an even more important development which was as yet
unapparent in the controversy. Beginning with its hearing in the U.S
District Court of Missouri, Chess v. Widmar (1979), retitled Widmar v.
Vincent (1981) on appeal to the Supreme Court, was to become the
landmark case as related to religious expression on public campuses of
higher education. Chess, the named plaintiff in the lower courts and
representing a group called "Cornerstone", sought "declaratory
judgment and injunctive relief with respect to a university regulation
under which the students were denied right to conduct regular
religious services in university-owned buildings" (p. 907), This
case, which will be reviewed in detail in Chapter III, resulted in a
29
denial of the plaintiff’s motion. The case was then appealed to the
Eighth Circuit Court of Appeals who overturned the decision of the
district court (Chess v. Widmar, 1980). A rehearing requested by the
respondents was denied and the case was appealed to the Supreme Court
by the University.
The decision by the Supreme Court was summarized when handed down
December 8, 1981; ’ ’State university’s refusal to grant student
religious group access to university facilities generally open to
other student groups, held unjustifiable, content based exclusion of
religious speech’ ’ (headnotes, Widmar v. Vincent, 1981, p. 440). The
Widmar decision, based primarily on the content of the expression by
the Cornerstone group, is even more significant in that it establishes
some distinct changes in the criteria to be used by the courts in the
future, a fact evidenced by Judge Powell’s application of the
three-pronged test to the case and the Court’s favorable opinion to
each of the three.
Statement of the Problem
Fueled by the election and reelection of an outspoken and affable
conservative in the White House, these first years of the 1980s have
witnessed an emergence of new political activism and power from the
evangelicals within the Christian churches of the United States. Yet
contrary to the media presentation or public perception of them, they
can hardly be marked as uniform in either their beliefs or actions.
Those things which are seemingly common among evangelicals include a
high view of biblical authority, a uniformity in a belief in the deity
of Jesus Christ and the necessity for personal response to the Gospel.
30
Other than that, one is apt to find just as wide a spectrum of
political and social opinions as could be discovered in a purely
secular setting. In other words, there is a niche in which any
evangelical can find a source of agreement, whether it be with Dr.
Jerry Falwell or with the Sojourners organization led by Jim Wallis
(see e.g., Monroe, 1985, pp. 1, 12; and The Christian as Citizen,
1985, pp. 24-27).
What, then, does this have to do with the focus of this study?
Simply this; It is from the evangelical movement that many of the
religious issues have been brought to national attention. Though the
Widmar case has not gained such national exposure (a fact attributed
largely to its limitation to higher educational issues), such cases as
Roe V. Wade (1973), have attracted national interest and strong
opinions not only among those such as Roman Catholics who have
traditionally opposed abortion, but among those of the evangelical
stamp as well. On the issue of abortion, it has been the evangelicals
who have been among the most vocal, and who also form the principal
strength of such organizations as Right to Life. And it was such an
evangelical club. Cornerstone, which brought Widmar to life and
offered a new challenge to the "wall of separation" concept, which
through the process of the courts was molded into what has become
known as the "equal access" law (i.e., allowing student religious
groups to use public-college property as freely as do other student
groups).
There are, then, two primary problems in the study. The first
31
has to do with the perception of the meaning of the Widmar decision by
the administrators in student affairs offices of the California
"tripartite" system of public higher education, and the second
pertains to the implementation of the law in those institutions. It
almost goes without saying that the second of these would naturally
follow the first, for an understanding of meaning affects the manner
in which implementation takes place. And an understanding of meaning
is impossible without a study of the context in which the decision was
formed, for Widmar did not just happen. Rather, the Widmar decision
was nested in a long history of legal opinion.
There are secondary problems in that decision, moreover, which
have pertinence to the primary ones. Justice Stevens, for example,
though concurring in Widmar, noted that student activity programs in
colleges are not open to the public in the same way as parks and
streets and asked if they are truly "public forums" (p. 277). He also
recognized another principle which escapes some, namely, the fact that
anti-religious discussion has been allowed on campus for a long period
of time, a situtation which is, obviously, not one of accommodating
neutrality (p. 281). In other words, the courts in recognizing
nontheistic religious systems, among which is that of Secular
Humanism, have put educational institutions on notice that the
pluralistic system of education allows free expression of every point
of view unless it has within it the seeds of disruption or some other
illegality such as libel.
American education began with strong religious overtones, the
first institutions of higher learning being created for the express
32
purpose of the propagation of the Christian faith. As is well-known,
all but one of the earliest American colleges were founded for this
purpose. And it was not only among academicians that a religious
heritage was strong. Among the laity there was a strong religious
bent of life as witnessed by the Episcopalian opposition in Virginia
to Jefferson’s attempted change of the Constitution of the College of
William and Mary by abolishing the study of theology and the school
for the instruction of Native Americans in the Christian faith.
The richness of life in the United States rests in part upon the
pluralistic ideology which pervades it. The older ’ ’integrative’ ’ or
’ ’ melting-pot’’ ideals were ideas which never could completely work out.
In contemporary American life, there is a recognition of the
individual and the importance of preserving one’s heritage. This is
the essence of true pluralism, and this spirit contributed to the
Widmar ruling in that it afforded religious groups a renewed status
which had been lost in the flood of ’’establishment’ ’ fears which
pervaded the religious decisions for three decades.
Yet the ruling is not without its inherent problems. Writing
prior to the handing down of the Widmar decision by the Supreme Court,
Howarth and Connell (1981) noted the complexity of the issues involved
in the case, especially in light of the Tinker decision, concluding
that ’ ’one thing is certain: the decision in Widmar will have a highly
significant impact on college life for years to come’ ’ (p. 143).
The fact is that the decision in favor of the equal access rights
of student religious groups carries with it some additional questions
which are directly related to the question of implementation. What
33
about the question of funding from student activity fees? Will there
be a rush by cult groups to establish religious organizations on
campus? How will space be allotted? What procedures will there be to
govern the use of off-campus speakers? These and Other questions are
only the initial difficulties with the Widmar ruling. Where will it
lead? What further constitutional clarifications will need to come
from the Supreme Court? These questions make Widmar of significant
interest to the religious and irreligionist alike.
Importance of the Problem
To observers whose orientation has been one of a strong religious
leaning, the decision in Widmar (1981) may seem to have appeared to
the Court in a burning bush. Some of these observers have been the
strongest critics of the judicial system, believing that it has only
favored those with a libertarian bent of life, and the Widmar ruling
has in part been interpreted by such that there it marks an initial
turnaround in the judicial system to recover their beliefs and
aspirations that America was specially ordained by God for the
preservation of traditional Christian values, a view held not only by
some of the more extreme Fundamentalists but articulated by Marshall
and Manuel (1977) in The Light and the Glory. To others such as
Peter Berger (1967), the decision might be interpreted as another step
in the secularization of religion in America. For example, M.E, Smith
(1983) described a secularist viewpont as "a propensity to identify
freedom of religion with freedom of speech" because "[i]t assumes that
thought and expression, whether in the realm of politics, science, or
religion, are all basically alike" (p. 116). But America has always
34
been viewed as a religious nation. No less a man than the French
philosopher and political theorist, Alexis de Tocqueville (1835/1898)
observed: "I do not know whether all Americans have a sincere faith
in their religion— for who can search the human heart— but I am
certain that they hold it to be indispensable to the maintenance of
republican institutions" (p. 391).
But it should also be understood that Widmar has not opened the
doors for student religious groups of Christian persuasion only. It
is questionable whether those who might be delighted with the decision
of the Court in Widmar have clearly thought through all of the
implications of that decision. The newly established freedom is not
limited to the followers of Christianity only; further, it seems a
reasonable prediction that there will be a plethora of new student
groups rising up to take advantage of the open door which Widmar has
established as the law of the land.
A second interest group is that of the educators and especially
student personnel administrators in institutions of higher learning,
for it is they who will have the responsibility of fleshing out the
details of all which the decision entails. Since the decades of the
1960s and 1970s, educators have become very aware that their service
has become increasingly one of carrying out the decisions of the
judicial system. It was this concern which prompted Justice Stevens
to write a separate opinion in the Widmar decision. Though concurring
with the decision, he nevertheless criticized the system for throwing
too much on the courts. He pointed out that educational institutions
must be concerned always with those programs which compete for the use
35
of both facilities and funding. Comparing two competing organizations
wishing to use the same facilities at the same time, one a group
desiring to view Mickey Mouse cartoons and the other to rehearse a
performance of Hamlet, he observed:
[T]he First Amendment would not require that the room be reserved
for the group that submitted its application first. Nor do I see
why a university should have to establish a "compelling state
interest" to defend its decision to permit one group to use the
facility and not the other. . . . Judgments of this kind should
be made by academicians, not by federal judges, and their
standards for decision should not be encumbered with ambiguous
phrases like "compelling state interest." (Widmar v. Vincent,
1981, p. 453)
A third interest group is made up of those who are strongly
suspicious of any interpretation of the First Amendment other than
that of a strict separationist position. Usually arguing from the
"historical" application of Jefferson’s "wall of separation," they
follow selected arguments presented by Justices Black, Rutledge and
their colleagues in the cases involving religion and the state.
Harboring great suspicion of religion, their statements follow the
same line of thought as those justices who may be influenced by
eighteenth century ideas concerning the evils of religion. For
instance, it is simple to categorize Justice Black as he spoke of the
18th century people as "a religious people divided into many fighting
sects" (Zorach v. Clauson, 1952, p. 318, emphasis added), or Justice
Robert Jackson (1948) in McCollum as "warring sects" (p. 235). Such
talk, however, must not be used to stereotype Black, Jackson, or
others as anti-religious. The difficulties with religious issues
during their tenure was with organized or corporate religion which
attempted to gain some advantage over others, and though their fears
36
may have been exaggerated, they were not without historical precedent
even in the early history of this country.
M. E. Smith (1983) has traced the evolution of the Court in its
religious decisions. The Court in which Black, Rutledge, Marshall,
and Douglas often shared the spotlight, he noted, had as its guiding
principle: "[Upholding] government action concerning religion only
when, because of peculiar political circumstances, its effect is to
hinder corporate religion or aid individual religion" (p. 112), though
that does not explain Justice Douglas’s defense of aid to corporate
religion in Zorach v. Clauson (1952), but as Smith also noted. Justice
Douglas "was a strong advocate of the personal freedom justifications.
No Justice of the Supreme Court since 1960 voted more consistently in
favor of individual believers" (pp. 104-105).
More than individual justices, three powerful groups have been
influential in their strict separationist stands. These are the
American Civil Liberties Union (ACLU), the American Jewish Congress
(AJC) and Protestants and Other Americans United for Separation of
Church and State (POAU). Their interests will certainly be continued
in future cases and one could reasonably expect them to argue for an
overturning of Widmar or for such restrictions being placed upon it as
to emasculate it.
The issue for the university system is one of academic freedom.
But academic freedom can be just as difficult a concept as "compelling
state interest." Is academic freedom to be understood in the sense of
T, H. Huxley’s words as "an atmosphere in which there prevail ’the
four essential freedoms’ of a university— to determine for itself on
37
academic grounds who may teach, what may be taught, how it shall be
taught, and who may be admitted to study?" (Sweezy v. New Hampshire,
1957, quoted by Justice Frankfurter, p. 263).
The judicial system, of course, provides safeguards, but always
there must be a balancing of interests. Justice White, for example,
questioned whether the university regulation forcing the Cornerstone
group to meet off campus was too great a burden on them. To him, "the
burden [was] minimal", though to others of the Court it appeared to be
prejudicial and unfair (Widmar v. Vincent, 1981, p. 459).
Thus it remains to be seen whether or not the Widmar decision
will have opened a can of worms which future courts may attempt to get
back into the can. What effect the ruling will have on college
campuses will take some time to assess, but to the investigator of
this study at least one thing is certain: Just as all good legal
scholars know they are moral and social theorists, working (to be
sure) within a particular exegetical tradition (see, e.g., Bickel,
1975; Hazard, 1971), student personnel administrators should be aware
that the law, including its interpretation, is far too important to be
left to lawyers alone and that they must try to translate its esoteric
language— terms (in the present context) like "establishment of
religion," "secular legislative purpose," "primary effect," "excessive
government entanglement," "political divisiveness," "free exercise of
religion," "free speech," "prior restraint," and "equal access"— into
the campus vernacular of "rights" and "wrongs" or at least into
clarified sets of "pros" and "cons" (see, e.g., Millington, 1979,
1982, 1984; Riesman, 1980) and thus prepare themselves and their
381
staffs before the issues arise.
Purpose of the Study
The overall purpose of the study was divided into three parts,
each one of which was interrelated and dependent on the others and
selected and arranged as follows:
1. The first purpose was to analyze the American theory of
religious liberty in its historical context, including its European
and colonial roots, the debates concerning the adoption of the
"establishment" and "free exercise" clauses of the First Amendment,
and the process of interpretive change marking the evolution of their
meaning up to the Widmar v. Vincent decision in 1981.
2. The second purpose was to analyze the Widmar v. Vincent (1981)
decision itself, including the Supreme Court’s reliance on, and
interpretation of, history and legal precedent, its response to
outside pressure and changing cultural values, and a prediction of the
issues that will likely arise from the decision.
3. The third purpose was to examine the dynamics of compliance
with Widmar by way of surveying the attitudes and perceptions of
student affairs professionals in California’s tripartite system of
public higher education, including their perceptions of compliance and
problems attached thereto.
Questions to be Answered
In accordance with the aforementioned purposes, the study was
designed to answer pertinent questions within the context of the
following three categories: (1) Historical Development: Pre-Widmar;
(2) The Widmar Decision : Rationale and Issues; and (3) Post-Widmar:
39
The Dynamics of Campus Compliance.
Historical Development: Pre-Widmar
1. What is the meaning of the First Amendment in light of its
historical context, its actual wording, and Jefferson’s metaphor, "a
wall of separation between church and state’ ’?
2. What religious concepts did the First Amendment’s Founding
Fathers have in common? Where and how did they differ? What effect
did their similarities and differences have on the wording and
intended meaning of the First Amendment’s ’’establishment’ ’ and ’ ’free
exercise’ ’ clauses?
3. Does a reading of history support a conclusion favoring a more
cooperative relationship between church and state, closer to the view
identified with Roger Williams, as opposed to the strict separationist
view espoused by Jefferson and favored by many past (and some present)
Supreme Court justices?
4. How and upon what basis was Madison’s original plan to extend
the guarantee of religious liberty to the states realized in the
Supreme Court decisions in Hamilton v. Regents of the University of
California (1934), Cantwell v. Connecticut (1940), and Everson v.
Board of Education (1947)?
5. How, upon what bases, and for what reasons did the Supreme
Court define religion?
6. How, upon what bases, and for what reasons did the Supreme
Court distinguish religious belief from religiously motivated action?
7. How and upon what bases did the Supreme Court determine
Establishment and Free Exercise violations? Was either one of these
40
clauses given a higher priority over the other?
The Widmar Decision: Rationale and Issues
1. What were the significant legal issues before the United
States District Court in Chess v. Widmar (1979)? Were there fixed,
per se rules for the guidance of the district court in this mixed
First Amendment case (i.e., where the clause prohibiting the
"establishment" of religion was pitted against the "free exercise" of
religion and "free speech" clauses)? What were the First Amendment
principles upon which the district court based its summary judgment?
What were the precedents used to support these principles?
2. In Chess v. Widmar (1980), what were the First Amendment
princples and precedents relied upon by the United States Court of
Appeals in reversing the district court? How did they differ from
those used by the district court? How and upon what bases did the
appellate court reconcile establishment clause restraints?
3. In Widmar v. Vincent (1981), what were the First Amendment
principles and precedents relied upon by the Supreme Court in
affirming the appellate court's reversal of the district court's
judgment?
Post-Widmar: The Dynamics of Campus Compliance
1. What distinctions existed among the public colleges and
universities in California with respect to student religious groups?
What similarities were there? What was the rationale for each?
2. In what manner (e.g. revision of campus regulations) and to
what extent were the California public colleges and universities in
compliance with the Widmar (1981) decision?
41
3, As a result of Widmar was there a significant increase in the
number of religious groups requesting official recognition and the use
of campus facilities?
4, Was the potential for political divisiveness aggravated by-
compliance with Widmar?
5, Has the compliance with Widmar resulted in any direct funding
of student religious groups on campus? Would such funding (if
provided) trigger future legal action with regard to an
"establishment" violation?
Assumptions of the Study
The following conceptual assumptions were implicit in this study:
1. Higher education in the United States has been influenced by
traditional institutions and beliefs of American culture and in turn
has reciprocated by affecting that culture.
2. The law is neither a static nor an absolute corpus but rather
a dynamic and changing body of principles governing the conduct of
human affairs,
3. Stare decisis is conditioned by both public opinion and
changing social conditions.
4. Judicial decisions providing solutions to immediate problems
often leave a residue of unresolved problems for the future.
5. The historical-legal research method was a valid method for
the investigation of this problem area.
Limitations of the Study
The following limitations may have affected the validity and/or
generalizability of the study:
42
1. As Merton (1968) cautioned, one of the more confounding
problems confronting the user of research conclusions is that such
outcomes may have been distorted by the researcher's implicit value
assumptions; in other words, the results may have been created rather
than "given" as representing mirror images of some reality "out there"
(p. 15). Accordingly, which variables were considered, how they were
conceptualized and measured, and the completeness of the explanatory
narration were factors that may have distorted the results of this
study.
2. Likewise, because of the present investigator's frame of
reference (e.g. Th.D, in Theology; former professor of biblical and
theological studies and administrator at Biola University, a liberal
arts college with an evangelical Christian statement of beliefs and
purpose; an author of a biblical commentary and numerous articles on
Christian beliefs; and a member of and an elder in the United
Presbyterian Church), the results of the study may have been slanted
accordingly.
3. Similarly, much of the data generated in the present
study— especially the historical/legal research and interviews— did
not lend themselves to quantitative analysis, which, according to
Williamson, Karp, Dalphin, and Gray (1982), "increases the chance that
the researcher's theoretical perspective and personal ideology will
have a substantial impact on the outcome of the study" (p. 187).
4. Next, because the Widmar v. Vincent (1981) decision had been
in effect only two years at the time of the survey and interviews, it
may have been too early to get a clear picture from the respondents as
42
to Widmar's impact on their institutions,
5. Finally, even well-developed research outcomes may be
undermined if the sweep of new events overtakes and discredits them.
A subsequent Supreme Court decision, for example, may significantly
alter some of the "legal realities" mentioned in this study.
Delimitations of the Study
In developing the boundaries of the study, the following
delimitations were made:
1. Due to the impracticality of a national study, the survey
regarding the compliance with, and impact of, the Widmar v. Vincent
(1981) decision was delimited to the public colleges and universities
in California— that is, the University of California (UC), California
State University (CSU), and California Community College (CCC)
systems.
2. Because the study pertained directly to those who administer
student affairs, the distribution of the survey was further delimited
to administrators of student affairs or their designated
representatives as qualified reporters.
3. Court cases, statutes, and other pertinent law not in effect
before January 1, 1985 were not included in the study.
Research Procedures
The investigation of the United States Supreme Court's opinion in
Widmar v. Vincent (1981), its generating history and Widmar's actual
and potential impact on public higher education in general and on
California's tripartite system of public higher education in
particular, was a descriptive study. In order to accomplish the
44
purposes of a descriptive study, however, a variety of research
methods are generally incorporated into the investigation, which in
the present study included historical/legal, survey, and interview
methods. As Digneo (1982) pointed out: "The highly flexible . . .
methodology of descriptive studies which draws from many disciplines
makes it adaptable to the study of unique educational programs or
situations" (p. 69).
Historical/Legal Methods
A comprehensive, descriptive study of the Supreme Court’s opinion
in Widmar, of course, would have not been possible without the use and
integration of historical and legal methods, both of which are
patently similar in form and purpose. Good and Scates (1954), for
example, observed that "the study of legal materials pertaining to
educational problems is clearly a type of historical research" (p.
270) and that "both procedures involve a painstaking documentary study
of sources, criticism of data, and interpretation" (p. 247; see also
Commager, 1966; Gustavson, 1955; Jacobstein & Mersky, 1981); and
Millington (1982), after noting that "both methods are of the same
cloth," pointed out that ”[t]he performance of [research in the law
requires] a firm grasp of the form and content of the three main
bibliographic sources of American law," which he listed as
(1) finding tools as a means of access into the large body of
American law . . . ; (2) primary sources which include statutes
passed by legislatures, court decisions, decrees and orders of
executives, and . . . , of course, the Federal Constitution and
the state constitutions; and (3) secondary sources which include
legal encyclopedias, textbooks, restatements, legal dictionaries,
and periodicals .... (pp. ii-iii)
Accordingly, the first step in this process was to consult
45
certain finding tools such as the Index to Legal Periodicals and the
Index to Periodical Articles Related to Law, wherein the investigator
located articles not only providing informed legal discussion relevant
to the study but also citing pertinent court decisions (primary
sources) and textbooks, monographs, other journal articles (secondary
sources) and the like. Also, because it was considered essential to
ascertain the meaning given to the words in the First Amendment’s
religious clauses by the ’ ’founding fathers,’ ’ it was necessary to check
into sources that preceded the adoption of the First Amendment; these
sources were easily located in Documents Illustrative of the Formation
of the Union of the American States (Library of Congress, Legislative
Reference Service).
Of course, in determining the meaning and boundary lines of the
First Amendment’s religious guarantees, it was ultimately essential to
focus the search on interpretations of these provisions by the courts,
especially those of the Supreme Court of the United States. Among the
most useful sources for these interpretations were the various
annotated codes (e.g., West’s United States Code Annotated ; and
Constitution of the United States Annotated), digests of federal cases
(e.g., West’s United States Supreme Court Digest; and McKinney * s New
California Digest), and the various legal encyclopedias such as
American Jurisprudence, California Jurisprudence, Corpus Juris, and
Corpus Juris Secundum — all of which in addition to pertinent case
cites provided digests (and in some instances commentary) on court
decisions, relevant legal propositions, and topical indices of
articles.
46
Once located, the cases in point were read and then
"Shepardized"— in this study a process of using either Shepard’s
United States Citations or Shepard’s Federal Citations to determine
whether a particular court decision had been modified, overturned,
affirmed, cited as precedent or authority in other cases, or affected
by appeal. Shepardizing also provided citations of cases including
similar or related issues to those being investigated.
Of course each one of these cases (over 100) was located in one
of the various federal court reporters (e.g., United States Reports,
Supreme Court Reporter, Federal Reporter, Federal Supplement) or in
one of the state reporter units in West’s National Reporter System in
a law library and then thoroughly analyzed in reference to applicable
issues, relevant rules of law, and how that case related to or
differed from other cases in point.
Survey/Interview Methods
Survey Questionnaire. The most widely used technique for the
gathering of educational data is the survey method. One of the
principal reasons for this is that the range of data which may be
collected by this method is quite broad. As Isaac and Michael (1981)
stated: ’ ’[Survey questionnaires] are a means of gathering information
that describes the nature and extent of a specified set of data
ranging from physical counts and frequencies to attitudes and
opinions’ ’ (p. 128), and it is from the data collected that the
researcher has a foundation available
to answer questions that have been raised, to solve problems that
have been posed or observed, to assess needs and set goals, to
determine whether or not specific objectives have been met, to
"571
establish baselines against which future comparisons can be made,
to analyze trends across time, and generally to describe what
exists, in what amounts, and in what context. (Isaac & Michael,
1981, p. 128)
Though the above list is impressive, the usefulness of the data
is also subject to some weaknesses of which the surveyor must not only
have an awareness but must also attempt to counter. Moser and Kalton
(1972) listed several weaknesses pertinent to survey questionnaires
among which are: (1) lack of spontaneity, (2) uncertainty as to the
right person answering the questionnaire, (3) lack of opportunity to
supplement written data by observational data, and (4) no guarantee of
an adequate response rate (pp. 261-262, 271; see also, Isaac &
Michael, 1981, p. 128; and Miller, 1979, pp. 41-42).
As Fox (1969) noted, there are three types of survey research:
(1) descriptive, (2) comparative, and (3) evaluative (p. 423). Of
these, the method which seemed most pertinent to this study was that
of the descriptive survey model which Fox stated is "intended to
describe a specific set of phenomena in and of themselves," an
advantage over other types because "the information provided is in
itself the answer to the research question" (p. 424). Also survey
questionnaires cover at least four broad types of subject matter which
include demographic characteristics, social environment, activities,
and the opinions and attitudes of the survey subjects (Moser &
Kalton, 1972, p. 5).
The procedure for the conducting of surveys was well outlined in
several sources (see, e.g., Fox, 1969, p. 448; Isaac & Michael, 1981,
p. 128; Moser & Kalton, 1972, pp. 41-47). Simply stated, the
48
the procedure involves the selection of a sample, the design of an
adequate tool to gather desired data, an analysis of the data, and a
report.
There were two major problems addressed in this study. These
related to the perceptions of the Widmar decision by student affairs
administrators and to the implementation of the Widmar decision into
the student life of public higher education in California. As
implementation is dependent upon perception, so perception is
dependent upon the rationale which forms the basis for the decision.
Following the concept of the descriptive survey as outlined by
Fox (1969), the questions included in the survey tool dealt basically
with the four areas of subject matter as suggested by Moser and Kalton
(1972, p. 5). A copy of the survey tool used in this study is
included in Appendix A of this study. The survey questionnaire
included a brief cover letter explaining the rationale and importance
of the study. Following this were four sections of questions relating
to demographics of the reporting institution, the recognized student
religious groups, their oversight by the student affairs office, and
the attitudes and opinions of the the student affairs professionals
responding to the survey.
The survey was sent in January 1984 to all public higher
educational institutions in the State of California, the University of
California (UC) system, the California State University (CSU) system,
and the California Community College (CCC) system. Responses were
received from seven of the nine UC campuses (78%), 10 of the 19 CSU
campuses (53%), and 61 of the 106 CCC campuses (57.5%).
49
Interviews. The use of interviews was very limited in this study
due to financial and geographical limitations. Too, the most
effective use of interviews is in their utilization with survey
questionnaires, because interviewing while taking the survey would
tend to increase objectivity and consequently, validity by clarifying
any ambiguities or unclear items. Also, the weakness of not knowing
who was responding to the survey would be eliminated. Though ideal,
however, this was not possible for this study,
Moser and Kalton (1972) listed three broad concepts of
interviewing which were developed by Cannell and Kahn. These were:
(1) "accessibility of the required information to the respondent," (2)
"cognition, or understanding by the respondent of what is required of
him," and (3) "motivation on the part of the respondent to answer the
questions accurately" (p. 271).
Of the two types of interviews; formal/structured or
informal/unstructured (see e.g.. Fox, 1969, pp. 543-544; Isaac &
Michael, 1981, p. 138), the latter was best suited for the process
used in this study. The interviews did not include any of the
respondents to the mailed questionnaire. The purpose of the
interviews was to gain a broader perspective on the implementation of
Widmar by talking with others affected by it such as students and
leaders of campus religious groups, and student affairs professionals
outside the California tripartite system of public higher education.
Though unstructured, the interviewer prepared questions directed
specifically to the the interviewee’s area of interest prior to
meetings with them.
50
Definition of Terras
For the purposes of clarity, pertinent terms were defined and
placed under one of the following categories: Higher Education,
Legal, and Religious. The principal sources used to define the terms
listed under "Higher Education" were The American Community College
(Cohen & Drawer, 1982), Higher Education in Transition (Brubacher &
Rudy, 1976), and the California Adminstrative Code/Title 5/Education;
those listed under "Legal" were the Encyclopedia Dictionary of School
Law (Gatti & Gatti, 1975), Black’s Law Dictionary (Black, 1968), and
the glossary of legal terms in The Law and the College Student
(Millington, 1979); and those listed under "Religion" were the
Evangelical Dictionary of Theology (Elwell, Ed., 1984), A Handbook of
Contemporary Theology (Ramm, 1966), the Encyclopaedia Brittanica (15th
edition, 1978) and The Scientific Study of Religion (Yinger, 1970).
Higher Education Terms
Academic Freedom; Perhaps Kaplin (1979) put his finger on the
real difficulty of defining this term, noting that the ”[c]ourts have
increasingly used academic freedom as the catch-all term to describe
the legal rights and responsibilities of the teaching profession"
(p. 141). Yet this kind of definition does defy a concept of
specificity. It is generally conceded that academic freedom does give
the academician "the right to follow an argument whithersoever it may
lead either in his research or in his teaching . . . ."(Brubacher &
Rudy, 1976, p. 308). Thus such a right is the right to explore,
express, compare, and analyze all views, though in certain situtations
51
(such as a school with a strong theological bias), the adoption of
certain views would be a cause for dismissal. Consequently, the
courts have noted that there are limits to this concept.
College : The term is a direct one from the Latin, collegium, and
has primary reference to a group of colleagues who are assembled
together in a common venture. Educationally, the term has a more
direct meaning to a society of scholars "incorporated within or in
connexion with a University, or otherwise formed for purposes of study
or instruction" (The Compact Edition of the Oxford English
Dictionary, 1971, p. 466). Generally, the term is used in the United
States for an institution which has certain limitations which may
pertain to the curriculum, it being largely one designed for the
undergraduate level of student, or the absence of ot limited scope of
graduate offerings. The California Education Code, for example,
states that the function of the "California State University . . .
shall have as its primary function the provision of undergraduate
instruction and graduate instruction through the master's degree"
(Section 66608). Though a description of the CSU system, it
nevertheless is in keeping with the distinction that the major
emphasis of the college is on the education of the undergraduate.
Community College: The community college is a two-year
institution which in its original design was to train students in the
first two years of the undergraduate program in the liberal arts. The
modern community college no longer is that limited. The California
Education Code points out the distinctive educational mission of the
community college: "Public community colleges shall offer instruction
52
through but not beyond the second year of college, . . .Their program
may include . . . standard collegiate courses for transfer to other
institutions; vocational and technical fields leading to employment;
general or liberal arts course; and community services" (Section
66701).
Student Personnel Services; Student personnel services is an
administrative unit of college and universities generally directed by
a vice-chancellor or vice-president. The title for both the unit and
its sub-units is varied. For example, student personnel matters at
UCLA are under the direction of (1) the Office of Organizational and
Inter-Organizational Relations (formerly Campus Programs and
Activities Office), and (2) The Dean of Student Relations Office .
(formerly Dean of Students Office). These serve under the Assistant
Vice Chancellor— Student Relations. The breadth of oversight includes
all student government and organizations, the use of institutional
facilities by students, as well as the regulations related to student
discipline and campus life.
University: The terms "college" and "university" are frequently
used interchangeably. However, there are certain differences which
characterize these institutions. In respect to the university, the
first clear distinction is the offering of professional training in
such fields as medicine, law, and dentistry, all of which are graduate
programs. Second, emphasis is placed on research. For example, the
UC system is designated "the primary state-supported academic agency
for research" (California Education Code, Section 66500). The CSU
system is more restricted regarding research, in that "[fjaculty
53
research is authorized to the extent that it is consistent with the
primary function of the California State University and Colleges"
(California Education Code, Section 66608), that "primary function"
being under graduate instruction. The third distinction is that the
university is differentiated from the college in the graduate
division, that is, the UC system in California is designated as "the
sole authority in public higher education to award the doctoral degree
in all fields of learning, . . ."(California Education Code, Section
66596).
Legal Terms
Allegation: A statement by a party to a legal controversy the
truth of which he or she proposes to prove in court.
Arbitrary: Autocratic; without adequate determining principle;
nonrational; careless; capricious.
Appeal: An application by the appellant to a higher court to
rectify an order of the court below.
Appellant: A person who makes an appeal from a lower to a
higher court.
Appellee : A person in a litigation against whom an appeal is
taken, known also as a respondent.
Appellate Jurisdiction: The power vested in higher courts to
correct legal errors of lower courts and to revise their judgments
accordingly.
Balancing Doctrine: Theory that no rights or freedoms are
absolute, but must be weighed against competing interests.
Case Law; The body of law developed by court decisions, as
54
opposed to statutory or administrative law.
Certiorari ; A plea which is based on a petition to an appellate
court which, if granted, orders the lower court to "certify" its
record of a particular case and forward it to the appellate court for
review. The appellate court may grant certiorari or deny it. A
denial of certiorari, while allowing the case to stand, is neither a
comment on the merits of the case nor does it constitute a precedent
regarding its grant or denial. There may be unusual circumstances,
however, when a denial of certiorari by a higher court will be read
by the lower courts as deciding the merits.
Common Law; The continually developing law through court
decisions as distinguished from statutes and regulations.
Concurrent Jurisdiction: Equal jurisdiction; that jurisdiction
exercised by different courts at the same time, over the same subject
matter and within the same territory, and wherein litigants may, in
the first instance, resort to either court indifferently.
Constitutional Law: The primary source of government power and
limitations on the exercise of such power.
Constitutional Tort: An individual's constitutional rights may
be protected through application of the Civil Rights Act of 1871 (42
U.S.C. 1983). Under this law, denial of an individual’s
constitutional rights may result in damages assessed by a court
against a public college or university governing board or against an
individual board member, administrator, professor or other individual
responsible for the constitutional denial. The law itself states:
Every person who under color of any statute, ordinance.
55
regulations, custom, or usage, of any state or territory,
subjects, or causes to be subjected, any citizen of the United
States or any other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities secured by
the Constitution and laws, shall be liable to the party injured
in an action at law, suit in equity, or other proper proceeding
for redress. (42 U.S.C.§1983)
Defendant: The party responding to the complaint; one who is
sued and called upon to make satisfaction for a wrong complained of by
another.
De Minimus : Insufficient injury to support a cause of action.
Dicta; Remarks made by a judge that are not technically part of
a decision and/or court order ; not binding on other judges but
nevertheless often studied carefully in that they may indicate future
directions of cases.
Discretion : The reasonable exercise of a power or right to act
in an official capacity.
Dissenting Opinion: A judge's explicit disagreement with the
majority decision.
Due Process of Law: Black's Law Dictionary (1968) defines due
process as;
Due process of law in each particular case means such an exercise
of the powers of the government as the settled maxims of law
permit and sanction, and under such safeguards for the protection
of individual rights as those maxims prescribe for the class of
cases to which the one in question belongs. A course of legal
proceedings according to those rules and principles which have
been established in our systems of jurisprudence for the
enforcement and protection of private rights. (p. 449)
Equal Protection: Requirement of the Fourteenth Amendment that
classifications of persons be reasonably adapted to the accomplishment
of proper governmental purposes.
56
Equity Law; A branch of remedial justice following principles
of fairness and reason in circustances in which the common law is
unable to assure justice. For example, under the common law a person
whose property rights are about to be taken has no choice but to wait
until the injury has taken place and then seek monetary damages. But
the injury may do irreparable harm for which money damages cannot
provide adequate compensation. Accordingly, under equity a person may
go to a judge, show why the common-law remedy is inadequate, and ask
for equitable relief to prevent an act that threatens irreparable
harm. In equity cases there are no juries, and violations of decrees
( e.g. a specific performance order or an injunction) are punished as
contempt of court.
Injunction: An order issued by a court of equity commanding a
person to do, or to refrain from doing, a particular act.
Judicial Review: The authority of any court to hold a specific
enactment of a legislative body or a particular act of an
administrative official to be unconstitutional and hence enforceable.
Original Jurisdiction: Jurisdiction of a court to entertain a
case at its inception, as contrasted with appellate jurisdiction.
Plaintiff : The party who initiates the lawsuit; the one who
alleges he or she has been wrongfully treated.
Precedent; A previously decided judicial holding which is
recognized as authority for the disposition of future cases.
Private Higher Education; An institution or institutions of
higher education chartered by the state but legally considered not to
be state financed nor acting as an arm of the state in carrying out
57
its educational mission.
Public Higher Education: An institution or institutions of
higher education chartered and financed by the state and acting as an
arm of the state in carrying out its educational mission.
Quasi : As if; analogous to (e.g., quasi-judicial means the
power held by some agencies to both execute and interpret
regulations).
Remand: The action of an appellate court, after reviewing and
deciding a case, sending it back to the lower court it came from for a
trial, retrial, or other such action.
Standing: The right to raise an issue in lawsuit. A person
does not have standing to sue if he or she was not sufficiently
damaged by the illegal or wrongful act of the defendant.
Stare Decisis: To stand by decided cases; a principle of
Anglo-American jurisprudence that a precedent once established in a
decision of a case should be followed in other like cases unless it
can be found to be in conflict with established principles of justice.
State Action: For the due process and equal protection
guarantees of the Fourteenth Amendment to apply, there must be a
substantial government involvement in the act alleged to be in
violation of those guarantees. This is the "state action" principle
and it constitutes the threshold of litigation in many civil rights
cases involving private colleges and universities.
Substantive Due Process: The requirement that all legislation
be reasonable; in general the following factors are used in
determining the "reasonableness" of challenged legislation : (1) Was
58
the purpose of the legislation a proper subject matter of legislative
power? and (2) did the means selected by the legislative body bear a
real and substantial relation to the purpose sought to be
accomplished?
Test : A standard or criterion used by courts to determine
specific issues.
Test Case: A suit designed to pose a general challenge to the
enforcement of a statute, regulation, or precedent, as well as to
determine the rights of the particular parties to the suit.
Tort : A civil wrong or injury not involving a contract; a
violation of a duty imposed by law.
Ultra Vires: Acts done by a corporation or public agency which |
are void for want of legal power conferred in the corporation's
charter or public agency's enabling statute(s).
Vacate : To annul, set aside, cancel, rescind, or render void.
Void-for-Vagueness Doctrine: A standard assuming the invalidity
of any law or regulation legitimately affecting First Amendment
freedoms that is "so vague that men of common intelligence must
necessarily guess at its meaning. ..." (Millington, 1979, p. 603),
Religious Terms
Born Again Christian; This term became particularly popular
during the Carter administration, largely because the President openly
testified to his position as such. It speaks of "an inner re-creating
of fallen human nature by the gracious sovereign action of the Holy
Spirit" (Packer in Evangelical Dictionary of Theology, 1984, p. 924).
The term could be separated into two separate terms, "born again" and
59
"Christian," For the most part, the term "born again," used in a
religious setting, is a Christian term, taken directly from the Gospel
of St, John, chapter 3, in which Jesus declares to the Pharisee,
Nicodemus, that he needs to be "born again." In the Bible, it is
equivalent to conversion, A synonym in theological usage is the term
"regeneration,"
To some of those using the term "born again," there often is the
addition of the second of these terms, "Christian." However, in the
biblical sense, if one is a "Christian," one is "born again," since
Jesus stated that without the new birth (or regeneration), one could
not enter the Kingdom of God, The use of the terms together is
usually characteristic of those who are more fundamentalistic in their
Christian beliefs.
Buddhism; An eastern religion. Buddhism is the "child" of
Hinduism. It is more ancient than Christianity, having come into
existence about 600 B.C. Buddha is not really a name but a title,
meaning "Awakened One." Founded by an Indian named Gautama, it marked
a change from the parent religion in that Buddhism, though holding to
the concept of reincarnation (not the same as the Christian concept of
being "born again" in that the Christian concept is not one of reentry
in a new form into the physical world after death), nevertheless holds
to a finality in the attainment of Nirvana, an ethical state in which
the disciple arrives at the end of all craving, or suffering. It is
the end of Karma, a term which has to do with the familiar maxim,
"What one sows, one reaps." In Buddhism, the path to Nirvana is an
eightfold path through four stages in which 10 fetters are broken.
60
Its popularity is due to its rigorous teaching of self-discipline,
mind-development (meditation), and unselfish conduct. Salvation to
the Buddhist is one which is worked out by the individual and is not
dependent on faith in another.
Cult ; A cult is basically a group who hold to common beliefs,
but whose general concept is that the cult and the cult alone holds
absolute truth. The term is to be distinguished from the term "sect"
in that the sect is a tangential part of a larger group. The sect may
be distinguished more by differences in practice than in dogma. For
example, the Presbyterians are a sect of Christianity, but few
Presbyterians would argue that they alone have the truth. However, a
cult is usually identified as standing in opposition to the historic
Judaeo-Christian faith as demonstrated in the major groups in that
heritage. The cult is distinguished by at least some of the following
characteristics: (1) it claims newer revelation than the Bible or
newer revelation regarding the interpretation of the Bible; (2) the
member of the cult must ascribe to the dogma of the cult as "the
truth" or will be banned from it; (3) the leader of the cult is
looked upon as the direct mouthpiece of God, and the Bible is
generally interpreted by the leader who speaks in his role ex
cathedra.
Eastern Religion: A general terra which lumps together those
religions which have had their origins in the Eastern hemisphere.
Among these are Buddhism, Hinduism, Taoism, Shinto, and Confucianism.
Evangelicalism: Evangelicalism is a movement within modern
Christianity which "transcends denominational amd ecclesiastical
61
boundaries that emphasizes conformity to the basic tenets [orthodox
and historic] of the faith and a missionary outreach of compassion and
urgency" (Weber in Evangelical Dictionary of Theology, 1984, p. 379).
On college and university campuses, such groups as Campus Crusade for
Christ, Intervarsity Christian Fellowship and Navigators generally
identify themselves with the evangelical movement.
Ethical Culture: The Society for Ethical Culture began in New
York City under the leadership of Felix Adler who died in 1933. Its
principal tenets lie in its conviction that morality is not
necessarily grounded in either religious or philosophic teachings,
that there is within every human being a moral strength that is not
dependent upon religion or philosophic ideas. Adler propounded three
goals for the organization: (1) sexual purity; (2) surplus income
should be used for the improvement of the working classes; and (3)
intellectual development.
Fundamentalism: A movement which began in the early part of the
twentieth century as a reaction against a liberal theology emerging in
the mainline Protestant denominations. It emphasized such teachings
as the inerrancy of the Bible, the deity of Jesus Christ who was God
incarnate in the flesh, whose death was a vicarious one for mankind,
who physically rose again from the dead on the third day following his
crucifixion, who bodily ascended into heaven and will return in
physical form at the end of time (these teachings were designated The
Fundamentals of the Faith, hence the name). While those who call
themselves evangelicals agree with the theology of this group and
trace their own movement back to this source, the modern
62
characteristic, "fundamentalist" has largely been perjorative. Too,
the term "fundamentalist" is now used in referring to such groups as
the Latter Day Saints, Jehovah’s Witnesses, Children of God, etc.,
groups which in their doctrinal viewpoints are radically different
from the original theological parameters of the term.
Religion; Rule (1984), writing in the Evangelical Dictionary of
Theology noted that "[t]he large number, and often contradictory
character of the definitions to be found in modern discussions of
religion suggest that scholars find it impossible to formulate a
generally accepted definition" (p. 939). Rule concluded that it might
be defined as "the acknowledgement of a higher, unseen power; an
attitude of reverent dependence on that power in the conduct of life;
and special actions, e.g. rites, prayers, and acts of mercy, as
peculiar expressions and means of cultivation of the religious
attitude" (p. 939).
Secular Humanism; Secular humanism is identified as a way of
life and intellectual development which has no relevance to God or
religion. The Society for an Ethical Culture has similar principles.
It is marked by a nonreligious approach to both life and thought.
Taoism: An eastern religion, Tao, lit., "The Way" was founded
in the 6th century B.C. by Lao-tzu, and it was the principal rival to
Confucianism. The key of Taoism is in its emphasis upon nature, doing
that which is natural and spontaneous. As such, it seems to lack the
discipline found in other Eastern religions. Everything in nature is
a microcosm of the next stage, so that one in union with nature is
involved in its rhythmic process (identified as Yin and Yang). Such
63
union with nature is attained through respiratory techniques,
(breathing with the whole body rather than just through the throat),
and meditation or "sitting in forgetfulness." The goal of Tao is
physical immortality, and the elderly Taoist sage is highly revered.
As a system, it has a certain affinity with the occult and
metaphysical.
Organization of the Remainder of the Study
The remainder of the study was organized on the basis of the
following outline:
Chapter II provided the historical, philosophical and legal roots
of the American notion of religious liberty, including an analysis of
the forces and the personalities which shaped the First and Fourteenth
Amendments, their interpretation by the courts, the doctrine of
compelling state interest, and the balance or imbalance which has come
between the "establishment" and "free exercise" clauses.
Chapter III traced the movement of the Widmar case through the
decision rendered in favor of the University of Missouri, Kansas City,
by the United States District Court in Chess v. Widmar (1979), the
decision of the United States Court of Appeals (8th District, 1980)
which reversed the decision of the district court, and that of the
Supreme Court in Widmar v. Vincent (1981) which upheld the appellate
court decision. The chapter examined and analyzed the rules,
principles and precedents for each of the decisions, the reason for
the reversal in the appellate decision and the affirmation of the
appellate court’s holding in the Supreme Court.
Chapter IV reviewed the methodology utilized in the collection of
64
\
data, data analysis and interpretation pertaining to the dynamics of
compliance, that is, the perceptions about and the implementation of
the Widmar ruling. Included were interpretations of data regarding
the revision of campus regulations with regard to student religious
groups, the extent of the proliferation of such groups, the effect of
such groups on other student groups, and the potential for future
problems as a result of the Court’s holding.
Chapter V reviewed the scope of the study, its findings,
conclusions and suggested recommendations for student affairs
professionals in the compliance with the Widmar holding.
65
CHAPTER II
RELIGIOUS LIBERTY AND THE FIRST AMENDMENT:
HISTORICAL, PHILOSOPHICAL, AND LEGAL DEVELOPMENTS
No provision of the Constitution is more closely
tied to or given content by its generating history
than the religious clause[s] of the First
Amendment .... That history includes not only
Madison's authorship and the proceedings before
the First Congress, but also that long and
intensive struggle for religious freedom in
America, more especially in Virginia, of which the
Amendment was the direct culmination. In the
documents of the times, particularly of Madison ,
[and] Jefferson , , is to be found
irrefutable confirmation of the Amendment's
sweeping content.
— Justice Wiley Rutledge in Everson v.
Board of Education (1947, p. 33)
As noted in Chapter I, the first purpose of the study was to
analyze the American notion of religious liberty in its historical
context for a number of reasons. For one thing, it hardly needs to be
said that the ongoing debates about the meaning of the Federal
Constitution's religious and free speech guarantees, generally, and
the Supreme Court's decision in Widmar v. Vincent (1981),
specifically, have their roots firmly planted in past attitudes and
value judgments. For another, if Widmar and its various parts were
scattered on some shallow ground without a broader web of
understanding, they would most likely remain unconnected bits of
66
information, unfettered by a sense of what was to the left and the
right, to the immediate and the distant.
In fact, "[t]he search for the usable past," as Shils (1958,
p. 155) put it in a similar context, is something that Constitutional
scholars are (and must be) very much involved in, the critical
importance of which is spotlighted indeed if one considers Justice
Rutledge’s above-mentioned observation in Everson v. Board of
Education (1947) in juxtaposition with Justice Oliver Wendell Holmes'
classic statement that "[t]he prophecies of what the courts will do in
fact, and nothing more pretentious, are what I mean by the law" (in
Scott, 1959, p. 459),
To be sure, the power of the Federal courts to strike down acts
of the national and state governments which they find inconsistent
with the Federal Constitution is not only one of the most salient
characteristics of American government, it has also strengthened the
political position of American judges enormously. That is, since no
federal or state law may be contrary to the Constitution, any decision
interpreting the Constitution is in effect a top-level political
decision. As David Trumen (1951) put it: "Interpretation of the
Constitution through judicial review imposes upon the judiciary,
particularly the Supreme Court, a task of statesmanship no less
political than that assumed in Philadelphia in 1787" (p. 48).
It was in this respect that Chief Justice Charles Evans Hughes
claimed in 1907 that "the Constitution is what the [justices] say it
is" (in Rothenberg, 1981, p. 19). But while the high court has said
various things about the Constitution, most often depending on the
67
times, it has consistently declared its dependence on the penetrating
history of the First Amendment to interpret that Amendment's
prohibition against the enactment of laws "respecting the establish
ment of religion" and the abridgement of the "free exercise" of
religion.
But just as many honest persons read the same data differently,
it must be conceded that Supreme Court justices may read the same
history differently. In a similar sense that is why some people argue
over whether the glass is half empty or half full and why some
incautious six-footers drown in lakes only four-feet deep, on the
average, that is. Given some 200 years of change in culture,
religious consciousness, technology and government, moreover, one may
wonder whether the nation should be tied to an eighteenth-century
perspective in the resolution of twentieth-century problems.
Then, too, although it is clear that America's beginnings were
bathed in religious experience, it would be an oversimplification to
link the discovery and settling of this land alone to religious
motivations. For example, Durant and Durant (1968) observed: "The
Crusades, like the wars of Rome with Persia, were attempts of the West
to capture trade routes to the East; the discovery of America was a
result of the failure of the Crusades" (p. 53). But while an economic
interpretation can illuminate much of this history, "[m]ost
historians," as Bellah, Madsen, Sullivan, Swidler and Tipton pointed
out, "have recognized the importance of biblical religion in American
culture from the earliest colonization to the present" (p. 28; see
also Bercovitch, 1975; Miller, 1967; Morgan, 1958).
68
In fact, Alexis de Tocqueville (1835/1969) went so far as to
proclaim: "I think I can see the whole destiny of America contained in
the first Puritans who landed on these shores" (p. 279). Christopher
Columbus, moreover, believed that his discovery of the new lands was
directed by divine Providence. One of his friends, a historian and
shipmate on his third voyage to the New World, Bishop Bartolomé de Las
Casas, recounted the explorer’s words : "It was the Lord who put into
my mind (I could feel his hand upon me) the fact that it would be
possible to sail from here to the Indies" (in Marshall & Manuel, 1977,
p. 17).
But in concluding these prefatory observations, it should be
noted that even though the concept of religious liberty has now been
so long embedded in the American psyche as to be considered an
established tradition, MacIntyre (1981) perceptively pointed out that
such traditions are nonetheless historical arguments: "Traditions,
when vital, embody continuities of conflict. . . . A living tradition
then is an historically extended, socially embodied argument, and an
argument precisely in part about the goods which constitute that
tradition" (pp. 206, 207).
The Colonial Period
Jamestown
There were three distinct religious strands to be traced in the
early British migration to America, each of which contributed a
particular context for the First Amendment. The first of these was in
the establishment of Jamestown, Virginia in 1607. The Virginia
Company was not greatly interested in religion, but a part of its
69
charter for Jamestown included provision for the evangelism of the
native population who, according to the royal charter of 1606, lived
in "miserable ignorance of the true knowledge and worship of God" (in
Marshall & Manuel, 1977, p. 83). The "true knowledge and worship of
God" was clearly that as prescribed by the Church of England.
Emigrants to the new colony were required to take the oath of
supremacy, declaring that the Anglican church was that which
represented such "knowledge and worship."
So the Established Church came to America’s shores, thus
embedding the first strand relating to the First Amendment of the
Constitution: the fact of an established church in America, The
Jamestown experiment, however, was not a religious enterprise. Only
one clergyman was sent with the original group who established the
trading center, and, according to Marshall and Manuel (1977), "was
handpicked by the one Partner who was going along, . . . because he
was in no way ’touched with the least suspicion of a factious
schismatic’ . . . [He] was, in a word, controllable" (p. 84).
New England
The second strand appeared 13 years later in New England.
Standing in stark contrast to the ill-fated Jamestown experiment,
religion was the raison d’ etre of the New England colonies. Early
on, there were two distinct groups which emigrated to the shores of
New England, and though they shared similar theological concepts, they
were distinct in terms of ecclesiastical as well and political
outlooks. The first of these were dissidents from England via
Leyden, Holland, who landed in 1620 to found the new colony of
70
Plymouth, and who were composed of a radical breakoff from the Puritan
movement.
Because the main body of Puritans had attempted to reform the
Church of England from within, there was no systematic persecution of
them. But these dissidents, labeled Separatists, and known also as
the Pilgrims, held that no one could be called the Head of the Church
except Jesus Christ. This position met with little favor from the
established church and led to their departure from the Church of
England. Deemed dangerous by the ecclesiastical authorities of the
Anglican Church, they were constantly spied on and bullied by the
authorities both in the Established Church and the government. Because
of the increase of such harrassment and greater persecution, they fled
to Holland for asylum.
After making arrangements to go to the New World, only one-third
of the approximately 600 Leyden pilgrims could go. Of these, some
were to travel in the Speedwell, while the others would take passage
on the Mayflower, a larger ship which carried a number of passengers
who were neither Separatists nor religious. Because of several
problems at sea, only those who took passage on the Mayflower made it
to the shores of America in 1620, They were to establish a colony
under the Virginia Charter at its northern border, an area just south
of the Hudson River, But contrary winds and seas, as well as the
impending winter forced their leaders to request that they be put
ashore in the Cape Cod area.
The non-Pilgrims on board were not about to be placed under the
rule of these "religious fanatics ;" but if they were to make it
71
through the winter which had already begun, certain compromises had of
necessity to be made. This resulted in what Churchill (1956) deemed
"one of the most remarkable documents in history" (p. 170). It was
"remarkable" because it was a document which was not forced upon
anyone; rather, it was a covenant agreed to by all. Called "The
Mayflower Compact," it heralded a democratic spirit "with its
acceptance of the principle of majority rule," an important concept,
according to Stokes and Pfeffer (1964), because "this Compact
virtually served them as their constitution" (p. 5).
The second of the religious groups coming to New England proved
to be the most influential in the Colonial Period. The Puritans had
received their name in derision (even as the term is used today), but
adopted it as their own. Hoping to restore the Church to new life by
remaining within it, their efforts were greatly thwarted by the
crowning of Charles I, his dissolution of Parliament, and his
appointment of William Laud as the Archbishop of Canterbury in 1628.
Archbishop Laud had no love for the Puritans, and their leaders
were faced with the problem of separating from the Anglican Church or
continuing to live within it. But a third option soon became
apparent: they could establish their concept of a New Israel in
America. Miller (1956) noted that "[tjhese Puritans did not flee to
America; they went in order to work out that complete reformation
which was not yet accomplished in England and Europe" (p. II). Within
two years, over 1000 Puritans had emigrated to the shores of New
England. A larger body arrived in 1630 under the leadership of John
Winthrop, who were influenced by the Separatists’ concepts of majority
72
rule, and the Congregational Church in America had its birth, its
members becoming identified with the Leveller strain of Puritan
thought who were the strongest advocates of "the political liberty of
individuals and the need for government by a democratically selected
Parliament" (Dumbauld, 1957, p. 145).
But just as "Man shall not live by bread alone" (Matthew 4:4),
these Puritans needed something more than "political liberty" and its
cousin, individualism. For one thing, they needed community, and John
Winthrop, of whom Miller (1967) spoke as standing "at the beginning of
our consciousness" (p. 6), made it abundantly clear that one’s
commitment to community was paramount: "We must delight in each other,
make others’ conditions our own, rejoyce together, mourn together,
labor and suffer together, always having before our eyes our community
as members of the same body."
In this shipboard sermon, which Winthrop delivered just before
landing in 1630, he also warned against the temptations of material
success and the urge "to embrace the present world and prosecute our
carnal intentions" at the expense of the public good and spiritual
salvation. And instead of "natural liberty," which he decried as the
freedom to do whatever one wants, evil as well as good, he called for
"moral" freedom "in reference to the covenant between God and man."
This freedom, he declared, is a liberty "to that only which is good,
just and honest," and a "liberty you are to stand for with the hazard
of your lives" (in Morgan, 1965, pp. 92, 139).
Thus one sees the countervailing forces of ethical/religious
content and community vis a vis freedom and individualism. And not
73
long thereafter another such contrast would appear in the form of
establishment versus separation of church and state which, alongside
the others, perhaps represents something of a clue as to the American
system of checking its own tendencies.
A Puritan by persuasion, Roger Williams found himself in
difficulty with other groups in New England because of what today
would be considered a fanatic viewpoint. A highly intelligent,
articulate minister, he became convinced that most of those in civil
government in New England were really not converted at all, and
opposing the system of establishment in Salem, he and his fellow
Baptists traveled 40 miles south to Plymouth only to become
dissatisfied there. As a result, Williams moved with a group of his
followers and established Providence in what was to become Rhode
Island. He, of course, championed a complete separation of Church and
State though his later bouts with the Quakers no doubt gave him pause
about those views (see, e.g., Marshall & Manuel, 1977, p. 198; Warfel,
Gabriel & Williams, 1937, pp. 32-35).
Later, according to Bailyn (1967), the Baptists "applied the
logic of secular liberty to the condition of religion and the
churches" (p. 265). For example, the Baptists in Massachusetts and
Revolutionary pamphleteer John Allen expressed their views to the
member of the Massachusetts General Court in Allen’s declamation, "The
American Alarm, or the Bostonian Pleas for the Rights and Liberties of
the People";
You tell your [colonial] governor that the Parliament of England
have no right to tax the Americans . . . because they are not the
representatives of America; and will you dare to tax the Baptists
74
for a religion they deny? Are you gentlemen their
representatives before GOD, to answer for their souls and
consciences any more than the representatives of England are the
representatives of America? . . . [I]f it be just in the General
Court to take away my sacred and spiritual rights and liberties
of conscience and my property with it, then it is surely right
and just in the British Parliament to take away by power and
force my civil rights and property without my consent; this
reasoning, gentlemen, I think is plain. (Bailyn, 1967, pp.
2 67 -2 68)
Later Religious Migration
Yet a third strand was to have its affect on American life and
politics as well. The latter quarter of the seventeenth century and
the first half of the eighteenth witnessed a great migration of people
who established new colonies— but more important to this study,
greatly affected the religious life of the emerging nation.
Presbyterians from Scotland, Quakers from England, Roman Catholics
from several nations, the Dutch, the Moravians, German Baptists, and
Jews began to look westward from Europe, and to some, the religious
battles which had become a part of the life of Europe loomed as a
threat to entrenched religious societies in the new land.
As a result of all of this, there were many "established
religions" in the colonies. The Jamestown settlement had set the
pattern, and as a result the Anglican Church was strongly entrenched
in Virginia, but that establishment was challenged by both Baptist and
Presbyterian congregations. But the force of such reasoning as
presented by John Allen led to the abolition of most denominational
establishments at the state level by the mid-1780's which ultimately
led to the inclusion of the Establishment Clause in the First
Amendment in 1791 (see, e.g., Abraham, 1977; Cobb 1902).
75
The National Period: The Legacy of Jefferson and Madison
Thus for over 150 years the American experiment was in embryonic
form. It was marked by struggles with the environment, the indigenous
population, the parent country, and with the self as well. In
religion, the original settlers watched the coming of Roman Catholic
and Jew, the Dutch Reformed, the Presbyterians, and the new approach
of Roger Williams in the colony of Rhode Island. And they watched as
well the increasing antagonism which some of these groups had toward
others. The options were many and varied. Some openly opposed the
"outsiders" while others seemed to mind their own affairs and were not
involved with the conflicts, though power struggles both in politics
and religion were topics of the day. If the newly formed nation was
to survive, new approaches had to be found in both politics and
religion.
One of the new approaches was to be found in the seventeenth
century development of new thought called the Enlightenment. Though
not entirely antagonistic to the Church, a number of its spokesmen
questioned many of the theological dogmas which had been promulgated
and accepted by organized religion. Among the theological questions
raised, one is of major importance to this study— the question of
inherent sin or man’s inherent goodness. The period was, as Harris
(1978) observed, "the heady days of rationalistic deductions," a time
in which "it seemed axiomatic that God had implanted his reason and
goodness in man," a time in which "there was no place for original
sin," because otherwise one had to conclude that "the creation would
have been monstrously unjust, and that was unthinkable" (p. 891).
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Because the Enlightenment found a new center in humanistic
concepts, moreover, it elevated the "idea of free, uncoerced,
individual consent as the only proper basis for all man's
organizations, civil and ecclesiastical" (Mead, 1963, p. 61); it was
as A. N. Whitehead described it, "[a] gospel of individualism" (in
Mead, 1963, p. 90), and was marked by an emphasis on man's conscience
and man's freedom.
Then, too, immediately following the war for independence, the
common-cause of defeating the British gone, the real struggle for
nationhood began. In reality, what was left were 13 small nations
with outward diversity as well as internal difficulties. During the
war, for example, farmers had been dispossessed of property in
Massachusetts. Upon their return from the battles, they had nothing
left and the government in Boston turned deaf ears to their complaint,
an event marked in American history as Shay's Rebellion. Out of such
disorder. General George Washington saw one light— the coming
convention at Philadelphia which he hoped would forge out the initial
document leading to a unification of the 13 colonies.
Washington's concern was not his alone, though there were some,
like Jefferson, who felt that the new rebellions were not altogether
unhealthy. His memorable words, "The tree of liberty must be
refreshed from time to time with the blood of patriots and tyrants,"
that "it is its natural manure" (in Smith, 1980, p. 33), did not set
well with many patriots who were glad that the struggle with Britain
was over and hoped for more peaceful days ahead.
"Liberty" became more than a watchword with the American people.
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It needed safeguards, for as Burns (1981) noted: "Glumly they recalled
the apparent lessons of history that republics had disintegrated as
they descended the fateful road marked by steps leading from LIBERTY
to DISORDER to ANARCHY to POPULAR DESPOTISM and finally to TYRANNY"
(p. 27). It was a time for heroes— especially intellectual heroes.
Fortunately, this fledgling nation was blessed with a host of such
heroes: Benjamin Franklin, John Hancock, John Adams, Patrick Henry,
William Henry Lee, to name but a few. But two principals in the
constitutional process were to gain stature above the others— Thomas
Jefferson and James Madison. Both of these men, in addition to being
products of Virginia, devoted colleagues in the struggle for liberty,
intelligent and articulate expositors of political philosophy and the
guiding lights in the formulation of the government of the United
States of America, were influenced by the philosophy of the
Enlightenment.
Thomas Jefferson
Jefferson, considered by Alexis de Tocqueville (1835/1969) "the
greatest democrat ever to spring from American democracy" (p. 203),
was a true Renaissance man. He was the son of a planter who died when
Jefferson was only 14 years of age, an event which probably had a deep
effect on him. He went on to study at William and Mary College,
following which he studied law, and was admitted to the bar in 1767.
Except for brief excursions, he never was out of public service
throughout his adult life. He served as a member of the Virginia
Legislature, as Governor of Virginia, minister to France, Secretary of
State under Washington, Vice-President of the United States, and
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President for two terms (1801-1809). He died on July 4, 1826 on the
fiftieth anniversary of the nation to which he committed so much of
his time and ability.
In terms of religious persuasion, Jefferson was a Deist. In his
later correspondence, this Deism was translated into a preference for
Unitarianism, evidenced by his correspondence to Thomas Cooper,
"Unitarianism had advanced to so great strength as now to humble this
haughtiest of all religious sects [Presbyterianism]" and later to
Benjamin Waterhouse, "I trust there is not a young man now living in
the United States who will not die a Unitarian" (in Marshall & Manuel,
1977, p. 351). But irrespective of his personal theology, he engaged
a principle which superceded any theological dogma, and that was the
idea of religious liberty. Though Jefferson was in France during the
Constitutional Convention in 1787, most of its delegates shared his
high esteem of liberty. As Burns (1981) noted, "only one force united
all these believers, disbelievers, mystics, pietists, schismatics,
dissenters, establishmentarians and disestablishmentarians: a belief
in religious liberty" (p. 8).
This champion for liberty served in the Virginia Legislature at
the time the Virginia Bill of Rights was passed on June 12, 1776. The
Bill, written by James Mason, nevertheless had the Jeffersonian stamp
upon it, and it was used by him in the framing of the Declaration of
Independence just three weeks later. Significant to the study of the
First Amendment, it included this statement regarding religion:
[R]eligion, or the duty which we owe to our Creator, and the
manner of discharging it, can be directed only by reason and
conviction, not by force, or violence; and therefore all men are
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equally entitled to the free exercise of religion, according to
the dictates of conscience; and that it is the mutual duty of all
to practise Christian forbearance, love, and charity towards each
other. (Warfel, Gabriel & Williams, 1937, p. 148, emphasis added)
Stokes (1950) observed that it was from this document that Madison
picked up the phrase, "free exercise of religion" to replace "the
fullest toleration" in the Bill of Rights (p. 380),
Jefferson’s views on religion have been the subject of much
discussion. Certainly he cannot be deemed antireligious, for he did
read the scriptures and even went so far as to compose a personal New
Testament. However, it was highly abbreviated in that he removed all
references to miracles, to the immaculate conception of Jesus Christ
as well as any other concepts not in accord with his Deistic views.
Perhaps it is more appropriate to state that he "had a deep respect
for religion" (Stokes & Pfeffer, 1964, p. 54), which was evident in
his many statements as well as his actions concerning religion. For
example, Jefferson proposed that a mission be established among the
Indian tribes, "the object of which besides instructing them in the
principles of Christianity, . . . should be to collect their
traditions, laws, customs, languages, and other circumstances which
might lead to a discovery of their relation with one another, or
descent from other nations" (Smith, 1976, p. 148). Accordingly, Smith
(1976) wryly concluded that "Jefferson was not opposed to the
’principles' of Christianity, . . . but only to its dogmas" (p. 148).
The most famous of Jefferson's pronouncements about religion and
that used most often by the courts, was his reply in 1802 to a
committee of the Danbury Baptist Association of Connecticut:
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Believing with you that religion is a matter which lies solely
between man and his God, that he owes account to none other for
his faith or his worship, that the legislative powers of
government reach actions only, and not opinions, I contemplate
with sovereign reverence that act of the whole American people
which declared that their legislature should "make no law
respecting an establishment of religion, or prohibiting the free
exercise thereof," thus building a wall of separation between
Church and State. (in Stokes & Pfeffer, 1964, p. 53, emphasis
added)
Certainly this statement is reflective of Jefferson's views in 1802,
but it was not an official governmental statement as to the meaning of
the First Amendment nor was it intended to be.
To sum up, it can be said that Jefferson's concepts were
religious though not orthodox. Yet, for him, "civil liberties in the
last analysis were dependent on religion, on belief in God" (Stokes &
Pfeffer, 1964, p. 55). Jefferson seemed always to base his political
concepts on the idea that they were God-given (though he might want to
define the concept of God). The references to God the Creator in the
Declaration of Independence as well as his Notes on the State of
Virginia demonstrate that principle. But it should be noted that
Jefferson never claimed to be the interpreter of the Constitution and
its amendments. His reply to the committee from Danbury is not
necessarily the only way which the First Amendment can be read.
History has demonstrated that fact.
James Madison
The importance of James Madison to this discussion is that he is
usually referred to as the "Father of the Constitution" (see, e.g.
Brant, 1978, p. 281). A fellow Virginian of Jefferson's, as well as
his friend and associate, Madison, too, spent most of his career in
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public service. He served in the Virginia Legislature at the time of
the drafting of the Virginia Bill of Rights, was a member of the
Continental Congress, served in the House of Representatives, was
Secretary of State in the Jefferson administration and the fourth
president of the United States, serving from 1809-1817.
Madison also was greatly influenced by Enlightenment thought,
though he did not share with Jefferson an optimism concerning the
basic goodness of man. Madison studied at the College of New Jersey
(later to become Princeton) under the Scottish Presbyterian, John
Witherspoon, and the result of his education was a blend of
Enlightenment ideas as well as some "old fashioned" Calvinist
Presbyterian theology. This combination, according to Peterson
(1974), "shaped a mental outlook in which the recognition of man’s
potentiality for virtuous freedom never lost sight of his potentiality
for evil" (p. 20).
As Madison had been one of the principals in Virginia’s
declaration of the freedom of religion, he sustained that same
leadership into the Constitutional Convention of 1787. In a sense it
was the trial under fire in Virginia which gave him the experience for
command in Congress. In 1785, for example, he presented his "Act for
Establishing Religious Freedom" to the Virginia legislature. The
particular issue at stake pertained to the requirement of religious
belief in order to hold office. To this Madison countered:
[0]ur civil rights have no dependence on our religious opinions,
any more than opinions in physics or geometry; that therefore the
proscribing any citizen as unworthy the public confidence by
laying upon him an incapacity of being called to offices of trust
_____and emolument, unless he profess or renounce this or that
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religious opinion, is depriving him injuriously of those
privileges and advantages to which in common with his
fellow-citizens he has a natural right; .... (Rutland, 1973,
p. 400)
The greatest written legacy left by Madison regarding religious
liberty was the "Memorial and Remonstrances Against Religious
Assessments" (which is included in Appendix D of this study). "This
Memorial," declared Stokes (1964), "is one of the most important and
eloquent documents in the history of the achievement of religious
liberty and the separation of Church and State in the United States"
(p. 55). Too, it has often been cited as a tract embodying the
rationale of the Establishment Clause (see, e.g.. Committee for Public
Education v. Nyquist, 1973, p. 770; Everson v. Board of Education,
1947, pp. 11-13.).
Madison emerged as the convention’s principal leader as he
steered the delegates in the construction of the Federal Constitution.
His experience in the Virginia legislature had fashioned his thinking,
for he had been well prepared there for the national problems by his
role in the struggle for religious liberty and his concern with
individual rights.
The Constitutional Convention of 1787
Just as references to and acts of recognition toward God were
characteristic of the American populace at the end of the
Revolutionary War, and just as there were some who were more broadly
secular, so the first members of Congress made up a mixed bag of
religious beliefs and interests. However, the nation was hardly
totally secularized. For example, the Declaration of Independence
83
included at least four references to deity, a fact which Stokes and
Pfeffer (1964) said "may be accepted as evidence that the founders of
the country, . . . were sympathetic with the fundamental theistic
belief and with the moral and social teachings of the Gospels"
(p. 85).
Other incidences such as the custom of opening the sessions of
the Continental Congress with prayer, the references to the importance
of religion as "necessary to good government and the happiness of
mankind" articulated in the Northwest Ordinance of 1787, as well as
the references to "God" in the records of the Continental Congress
clearly delineate a religious heritage as recognized by the founders
of the nation (see Stokes & Pfeffer, 1964, pp. 83-86). Add to this
the religious fervor brought by the Second Great Awakening which began
about 1780, and it is evident that the first assemblage of this
"constitutional caucus" would be representative of the people served
by its members.
It is proper to ask with Burns (1981), "What manner of men were
these?" (p. 32), and he succinctly replied that
they had more political experience than any gathering of the
leaders of a newly independent nation at any time in history.
They were mainly youngish, averaging in their early forties.
Almost all were wealthy, or at least comfortably off. Most were
from established families. . . . They were almost all at least
nominally religious, ranging from robust Christians to the
tolerantly ecumenical or broadly secular, (pp. 32-33)
Summing up his description, he identified them as "the well-bred, the
well-fed, the well-read, and the well-wed" (p. 33). Obviously, their
religious concepts varied. Some of them would identify with the
deistic movements of their day, and others would still be influenced
84
by strong theistic Christian beliefs. This would be evidenced by the
fact that only two colonies had full freedom of religion (Virginia and
Rhode Island), one. South Carolina, held to religious toleration, New
York granted full freedom with some political exigencies and the
remaining nine had some dogmatical requirements for their citizens and
certainly for those who were stewards of public office (see Stokes &
Pfeffer, 1964, p. 81), so there is ample evidence that the majority of
those who did show up were at least "nominally religious."
These delegates had not come together to create a document
regarding religious freedom. Their goal was that of liberty— "liberty
with order, liberty with safety and security, liberty of conscience,
liberty of property, liberty with a measure of equality, but above
all, liberty" (Burns, 1981, p. 33). And for the weeks of Spring and
Summer of 1787, they proposed, argued, voted, reconsidered, sent to
committee, and finally completed a document to which three of the
delegates refused to sign their names, and some had only signed as a
show of unity, while others complained about the lack of specific
guarantees regarding liberty.
But the Constitution, nevertheless, was sent to the states for
ratification, and on June 31, 1788, the ninth and decisive state
legislature voted for its ratification, though neither the
legislatures of Virginia nor New York had acted. Their votes were not
crucial for the commissioning of the Constitution; however, their
votes for ratification were crucial to the the process of
implementation. Both of these states, as well as several of the those
in New England, made their votes contingent upon the amending of the
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Constitution to include a bill of rights which would remove the
ambiguities from the original document, thus guaranteeing freedom in
matters of conscience.
The Bill of Rights
The question of whether to attach a bill of rights to the Federal
Constitution occupied the first matters of business of the first
Federal Congress as it assembled in 1789. George Washington in an
impressive ceremony had been innaugurated as the first President of
the United States and the American "experiment" was launched. The
state elections had witnessed the victory of the Federalists though
not in any overwhelming majority. In a struggle in Virginia, James
Madison was elected to the House by agreeing that a bill of rights was
necessary, and he also picked up votes among the Baptists because of
his firm position regarding religious freedom. It was he, then, who
spearheaded the process of working out a list of specifics which would
be added to the Constitution.
Over 200 amendments were brought by the newly elected congressmen
and senators. But the end of the matter was that only 10, popularly
termed the "Bill of Rights," were recommended for inclusion in the
Federal Constitution, though "the heart of the Bill of Rights," wrote
Burns (1981), "lay in the bold and absolute provisions of the first
article: Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof" (p. 90).
Although Madison is often credited with the primary authorship of
this first article (see, e.g., Stokes & Pfeffer, 1964, p. 481), his
proposed wording was largely lost in the final draft. Madison had
86
proposed; "The civil rights of none shall be abridged on account of
religious belief or worship, nor shall any national religion be
established, nor shall the full and equal rights of conscience be in
any manner, or on any pretext, infringed" (in Stokes & Pfeffer, 1964,
p. 93), Madison’s proposal also included a second statement: "No
State shall violate the equal rights of conscience, or the freedom of
the press, or the trial by jury in criminal cases" (in Stokes &
Pfeffer, 1964, p. 93), Madison further proposed that this article be
included in the original Constitution together with the statement
regarding religious tests for office (see U.S. Constitution, Article
VI, paragraph 3). The second of his statements which pertained to the
States was defeated by the Senate, and the effect of his original idea
was not realized until the Fourteenth Amendment was ascertained to
have incorporated within it the full Bill of Rights,
Nor was the first proposal in Madison’s suggestion fully
realized. But even if Madison’s suggestion had been acceptable in
toto, it could be argued that his principal objection was to any
denomination being set forth as the national church. The religious
pluralism of Congress would and in fact did agree with that
proscription. Since their goal was liberty, an infringement of rights
on religious grounds would hardly be countenanced. So to use Madison
as a protagonist in contemporary issues such as released time, Bible
reading and prayers in the schools, and equal access, (i.e., in issues
where there is not a particular denomination involved) might well be
considered a slight stretching of his concepts. Certainly most of the
contemporary educational issues were not even imagined in his era.
87
Too, it was not Madison's thinking alone which was borne out in
the final statement of the First Amendment. In fact the wording of
what was to become the First Amendment was hammered out in both
houses. The final wording which evolved included especially some of
the thinking of Congressman Livermore of Massachusetts, who suggested
that the prohibition should be directed particularly to Congress, and
to Congressman Ames who suggested the wording that Congress should
"make no laws respecting an establishment. , . which is much closer
to the final declaration than the first suggestion of Madison (see
Stokes & Pfeffer, 1964, pp. 94-100 for the full account of the debate
on wording).
There is no statement or implication here of "a wall of
separation between church and state." Rather, the proposed amendment
manifested the desire of Congress to prevent both a nationally
established religion and any denomination's advantage over another.
The exact wording is ambiguous enough to preclude a dogmatic assertion
that the intention of Congress was to express a very narrow view, an
accommodation view (see, e. g., Howe, 1965), or a position of strict
neutrality (see, e.g., Kurland, 1962). In fact the actions of
subsequent Congresses would provide evidence that there was more of an
accommodation than either a narrow (strict) or neutral view.
The proclamation of fasts, thanksgivings, references to deity in
innaugural addresses, the establishment of a military chaplaincy, a
chaplain for the Senate, as well as prayers at official ceremonies,
were not deemed by the majority as establishment issues. Though
Madison had endorsed a military chaplaincy (at least, he is not
recorded as having opposed it) when it was begun, he did object to the
concept in his later years (Stokes & Pfeffer, 1964, pp. 481-482).
There does not seem to be a scintilla of evidence in all of those
occasions that there was an attempt on the part of the federal
government to force a religious system on the populace. This would be
in keeping with the concepts of Roger Williams in his use of the
metaphor of "a wall of separation" (see Howe, 1965, pp. 5-6), that is,
that the government should not attempt to intrude itself into the
affairs of religion. This seems to have been the prevailing attitude
of the Court until very recent days (see, e.g.. Bob Jones University
V. United States, 1983; Sherbert v, Verner, 1963; Wisconsin v.Yoder,
1972).
Though one could perhaps interpret the actions of the Court in
the prayer cases as being one of a strict and narrow interpretation of
the religious clauses, the released time cases(see, e.g., Zorach v.
Clauson, 1952), the Sunday closing law decision (see McGowan v.
Maryland, 1961), the question of state legislatures’ use of chaplains
paid by the state (see Marsh v. Chambers, 1983), as well as the
granting to a city the right to display a creche, or a nativity scene,
as a part of an annual Christmas recognition (see Lynch v. Donnelly,
1984), all demonstrate that the Court has maintained a view that
"respects the religious nature of our people and accommodates the
public service to their spiritual needs" (Justice Douglas in Zorach v.
Clauson, 1952, pp. 312-314, emphasis added).
Tribe (1978) also forcibly stated that "the Court has never
adopted the ’strict neutrality’ theory" (p. 822), which he identified
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as "Madison’s view" (p. 819). Furthermore, he noted that Justice
Goldberg’s opinion in Abington School District v. Schempp (1963), that
"government neither engage in nor compel religious practices, that it
effect no favoritism among sects or between religion and nonreligion,
and that it work deterrence of no religious belief," does "entail a
notion of accommodation— recognizing that there are necessary
relationships between government and religion; that government cannot
be indifferent to religion in American life; . . . and sometimes must,
accommodate its institutions and programs to the religious interest of
the people" (p. 822).
The Fourteenth Amendment, the Concept of Incorporation,
and the Realization of Madison’s Original Design
for the First Amendment
Madison’s suggested stricture on the States, as noted above,
failed in 1789, but it was not dead; it was only postponed until the
Fourteenth Amendment was considered to have incorporated the entire
Bill of Rights, a concept which really did not influence the courts
until the 1960s (see Millington, 1979, p. 90). In fact, were it not
for the rather recent interpretation of incorporation. First Amendment
issues would have probably followed the decisions made prior to the
enactment of the Fourteenth Amendment. The first of these is Barron
V. Baltimore (1833) in which Chief Justice Marshall removed any
question as to the applicability of the Bill of Rights to the States
when he wrote: "These amendments contain no expression indicating an
intention to apply them to the State governments. This Court cannot
so apply them” (p. 250).
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And 12 years later, in Permoli v. First Municipality of New
Orleans (1845), the Supreme Court held specifically in respect to the
free exercise of religion clause of the First Amendment: "The
Constitution makes no provision for protecting the citizens of the
respective States in their religious liberties; this is left to the
State constitutions and laws; nor is there any inhibition imposed by
the Constitution of the United States in this respect on the States"
(p. 609). This same principle was employed by the Court in Gitlow v.
New York (1925) in a free speech case. Though assuming that the
Fourteenth Amendment guaranteed the protection of freedom of speech
and press, in Gitlow the Court nevertheless sustained the validity of
a State statute which restricted both free speech and the freedom of
the press when either was in advocacy of criminal anarchy.
Until Justice Black presented his historical overview in defense
of the principle of incorporation in Adamson v. California (1947),
there was but one other exception to the incorporation concept—
Hamilton v. Regents of the University of California (1934) in which
the Court ruled as constitutionally valid a state requirement that
male students at the University of California be required to
participate in ROTC (pp. 256, 262). In Hamilton, the problem of
conscientious objection was tested so that it did indeed involve a
First Amendment issue as incorporated in the Fourteenth Amendment.
Its argumentation is significant because the appeal was based on the
concept "that the liberties guaranteed by the First Amendment are a
part of the liberty safeguarded by the due process clause of the
Fourteenth Amendment" (p. 248). However, the Court in finding for the
91
State of California clearly disallowed any concept of the incorpora
tion principle in spite of the argumentation on that basis.
Justice Cardozo, concurring with the Hamilton ruling, provided a
clear picture of his reasoning in the conflict between the
establishment and free exercise issues. Also, he seemed to express an
uncertainty about the incorporation concept that the First Amendment
was incorporated into the Fourteenth.
The First Amendment, if it be read into the Fourteenth, makes
invalid any state law "respecting an establishment of religion or
prohibiting the free exercise thereof," Instruction in military
science is not instruction in the practice or tenets of a
religion. Neither directly nor indirectly is government
establishing a state religion when it insists upon such training.
Instruction in military science, unaccompanied here by any pledge
of military service, is not an interference by the state with the
free exercise of religion when the liberties of the constitution
are read in the light of a century and a half of history during
days of peace and war. (Hamilton, 1934, p. 266)
But if it was not certain or clear in Hamilton, six years later in
Cantwell v. Connecticut (1940), the Court clearly held that the
religion clauses of the First Amendment were made applicable to the
States via the Fourteenth Amendment. In that decision, the Court
ruled that a State requirement of licensing for solicitation for
"religious causes" was constitutionally invalid because it involved
prior restraint upon the free exercise of religion, adding that the
"Fourteenth Amendment has rendered the states as incompetent as
Congress to enact such laws" (p. 303). The State may regulate time,
place, and manner of solicitation, but may not "unconstitutionally
[invade] the liberties protected by the Fourteenth Amendment" (p.
304).
And after another six years, a challenge of a New Jersey statute
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which provided aid in the form of payments for transportation to
parents whose children were enrolled in parochial schools was
considered by the Court. This celebrated case, Everson v. Board of
Education (1947), was the first case to examine critically the
question of what constituted an establishment of religion. Again, it
was a test of a state-imposed regulation which the appellant held was
in violation of the First Amendment. Interestingly, Justice Black
wrote the majority opinion which upheld the statute and within which
he delineated what he believed an "establishment of religion" to be:
The "establishment of religion" clause of the First Amendment
means at least this: Neither a state nor the Federal Government
can set up a church. Neither can pass laws which aid one
religion, aid all religions, or prefer one religion over another.
Neither can force nor influence a person to go to or to remain
away from church against his will or force him to profess a
belief or disbelief in any religion. No person can be punished
for entertaining or professing religious beliefs or disbeliefs,
for church attendance or non-attendance. No tax in any amount,
large or small, can be levied to support any religious activities
or institutions, whatever they may be called, or whatever form
they may adopt to teach or practice religion. Neither a state
nor the Federal Government can, openly or secretly, participate
in the affairs of any religious organizations or groups or vice
versa. In the words of Jefferson, the clause against
establishment of religion by law was intended to erect "a wall of
separation between church and State." (p. 16)
One might fault Black as having included some things which are
more akin to the free exercise of religion than the establishment
issue, but what seems most curious in Black’s statement is that he
seemingly took a completely opposite tack in the Adamson v. California
(1947) ruling later in the same judicial session. And though Adamson
did not involve a religious issue. Black used the decision to propound
his own historical analysis of the incorporation principle. Since he
had had time to ponder Justice Rutledge’s review of First Amendment
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history in the dissenting opinion in Everson, and since Black provided
a similar review in Adamson, it might be conjectured that he was won
over by Justice Rutledge’s presentation.
In Adamson Black referred to the history of the Fourteenth
Amendment, citing especially the speeches in the debates of its
sponsors, Congressman Bingham of Ohio and Senator Howard of Michigan.
He then concluded that the first eight amendments were made applicable
to the States by the Fourteenth Amendment and that this had been the
intent of its sponsors. Referred to as the doctrine of incorporation,
it has been applied in most establishment cases since Adamson, though
the Court has not demonstrated its full agreement with the total
incorporation view of Black, nor have Black’s views escaped criticism
by legal scholars. In 1949, for instance, two eminent professors of
law, Stanley Morrison and Charles Fairman of Stanford University
presented a strong case against the principle of incorporation in
which they faulted Black’s interpretation of history as being
selective (see Fairman, 1949; Morrison, 1949). Their survey of the
evidence seemed much more thorough and convincing than Black’s, but
the Court has seemingly paid little attention to their exegeis. But
rather than discuss the validity of the principle (a topic of great
interest but not clearly pertinent to this study), the fact of its
implementation by the Court has been accepted as the present standard
of the judicial system.
Evolution of First Amendment Interpretation
The decision in Widmar v. Vincent (1981) would never have come
about without new interpretative directions on the part of the Court,
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These have obviously involved the question of "religion", but they
have been far more expansive than that, for embodied in the First
Amendment are the freedoms related to speech, expression, and
assembly, all of which are pertinent to this study. Each of these
freedoms has been modified or adapted by the Court to solve
contemporary problems, problems which have resulted from the great
increase of population, to be sure, but also have resulted from the
greater pluralism which has been the concomitant of that population
growth. It was important to this study that these changes be noted.
A New Concept of Religion.
It has already been noted that religious issues are usually
sticky ones, and this point is further evidenced by the rather recent
notion that what had passed for "religion" for a long period of time
was no longer the accepted dogma of the Court. Various definitions
have come and gone, but for legal purposes, the following definition
from Black's Law Dictionary had been the basic concept behind the
term:
Religion. Man's relation to Divinity, to reverence, worship,
obedience, and submission to mandates and precepts of
supernatural or superior beings. In its broadest sense includes
all forms of belief in the existence of superior beings
exercising power over human beings by volition, imposing rules of
conduct, with future rewards and punishments. Bond uniting man
to God, and a virtue whose purpose is to render God worship due
him as source of all being and principle of all government of
things. . . .
As used in constitutional provision of First Amendment
forbidding the "establishment of religion," the term means a
particular system of faith and worship recognized and practised
by a particular church, sect, or denomination. (Black, 1979,
p. 1161)
95
This definition, however, has not been the ruling definition in
the more recent decisions of the Court. The Court, in fact,
recognizes variable definitions of religion in the two religious
clauses as Tribe (1978) pointed out:
Understanding and resolving the tension between the two religion
clauses is aided by an examination of the use of the word
"religion" in each. At least through the nineteenth century,
religion was given the same fairly narrow reading in the two
clauses: "religion" referred to theistic notions respecting
divinity, morality, and worship, and was recognized as legitimate
and protected only insofar as it was generally accepted as
"civilized" by Western standards. Courts, moreover, were
considered competent forums for making such determinations.
But even before the turn of the century, dramatic changes
were surfacing in American religion and in theological reflection
upon its many variations, . . . Even within a single
religion— Christianity— tremendous diversity has occurred, with
some Christian groups formally accepting members who regard the
concept of "God" as irrelevant or even harmful. . . .
These changed circumstances made it all but inevitable that
the Supreme Court would modify the narrow understanding of
"religion" that had characterized the early development of this
area of the law. Clearly, the notion of religion in the free
exercise clause must be expanded beyond the closely bounded
limits of theism to account for the multiplying forms of
recognizably legitimate religious exercise, (pp. 826-827)
Though a shift in the Court’s thinking began with United States
V. Ballard (1944), it was declared more specifically in Fowler v.
Rhode Island (1953) where the Court held that "it is no business of
courts to say that what is religious practice or activity for one
group is not religion under the protection of the First Amendment"
(pp. 69-70). Justice Black in Torcaso v. Watkins (1961) stated that
nontheistic religions were also protected by the First Amendment, and
even included ethical culture and secular humanism in his list of
protected "religions" (p. 495, n. 11).
However, it was in the conscientious objector or draft cases that
96
the changes in a definition of religion became significant. For as
Tribe (1978) noted, the courts construed "theistic statutory language
in non-theistic terms" (p. 830). Thus in United States v. Seeger
(1965), Justice Clark, writing for the majority, held that a "belief
in a Supreme Being" could be interpreted to mean "a place in the life
of its possessor parallel to that filled by the orthodox belief in God
of one who clearly qualifies for the exemption" (p. 166). That this
was significant is demonstrated by the fact that those counselling
potential draftees as well as dissatisfied persons already in the
military had to approach the counselling session with the recognition
that "when free exercise issues are raised, religious claims are to be
examined not in terms of the majority’s concept of religion but in
terms of the role the beliefs assume in the individual’s life" (Tribe,
1978, p. 831; see also United States v. Seeger, 1965, p. 166).
It is doubtful that the Framers of the Constitution or of the
Bill of Rights had any such notion of "religion" for Deism was based
on the Judaeo-Christian model, though it questioned the traditional
concepts of orthodoxy in both Judaism and Christianity. Deism
nevertheless posed the concept of a personal God who was a guide and
finally a judge. Both Judaism and Christianity have proceeded on such
an objective basis, teaching the reality of the world as the handiwork
of a Creator, and Deism did not deny this. In fact, in its
beginnings, the real difference between the Judaeo-Christian model and
the Deistic was the demand of the latter on universels. Brown (1984)
traced this to the thinking of the Englishman, Edward Herbert of
Cherbury (1583-1648) who defined five basic principles as
97
characteristic of true religion: "(1) there is a God; (2) God must be
worshiped; (3) the chief parts of worship are virtue and piety (not
orthodoxy!); (4) man is bound to repent of sin and despise it; (5)
virtue will be rewarded and vice punished both in the present world
and in the hereafter" (in Brown, 1984, pp. 400-401). This is a far
cry from the subjective tendencies which characterize many of the
eastern religions as well as a humanism based on an existential model.
By opening the door to a new definition of religion, the Court
has further muddied the meaning of the religious clauses and any
attempt to argue their meaning on the basis of the Framers’ intent
seems quite futile. Certainly the content of the word "religion" for
the Framers did not carry the baggage assigned for it in contemporary
litigation. It seems ironic that the Constitution of the United
States was, as Zylstra (1982) pointed out, "an embodiment of the
eighteenth-century Enlightenment in its moderate form," a movement
which brought into prominence and acceptance "humanism, the religion
which idolized the self-realization of human personality" (in Buzzard,
1982, p. 10). Thus established religion to the Framers was at least
based on an objective model. The attraction of Deism was therefore
its universality— a quality consonant with pluralism. The religious
statements of both Madison and Jefferson were in agreement with the
concept of a personal God even though their ideas of religion would
not be accepted as orthodox.
Religious Belief versus Religious Action.
The free-exercise challenges to governmental regulation have
often stemmed from the tension between one’s belief and the behavior
which proceeds from that belief. The first case to test this
distinction was Reynolds v. United States (1878). It was one of
several cases involving the Mormon practice of polygamy, a practice
forbidden by Federal law as applied to the territories. Reynolds
insisted that it was his right to practice his religions duty which
called for him to practice polygamy.
Chief Justice Waite, however, declared that though "Congress was
deprived of all legislative power over mere opinion," it "was left
free to reach actions which were in violation of social duties or
subversive of good order" (p. 164), and he concluded; "Laws are made
for the government of actions and while they cannot interfere with
mere religious belief and opinions, they may with practices" (p. 166).
But Tribe (1978) noted that the distinction made in Reynolds "is more
apparent than real," and that "the real distinction must be between
laws that aim only at a religious aspect of conduct or seek to achieve
a clearly religious end, and laws that aim at a secular dimension of
the subject matter either regulated or supported" (p. 838).
It seemed then that the thinking of the Court would be to steer
away from any judgment on belief, and to curb action. A further test
came over 60 years later in Cantwell v. Connecticut (1940) where the
Court held that "conduct, though subject to greater regulation than
belief, may be protected under appropriate circumstances" (Gunther,
1985, p. 1510). Justice Roberts stated that the principle of free
exercise "embraces two concepts,— freedom to believe and freedom to
act. The first is absolute, but in the nature of things, the second
cannot be" (Cantwell v. Connecticut, 1940, pp. 303-304).
99
The early distinction in Reynolds was crumbling, and that became
even more apparent in Minersville School District v. Gobitis (1940),
the first of several cases in which Jehovah’s Witnesses challenged
school regulations requiring students to salute the American flag. It
was at this point that the concepts of free exercise moved into the
realm of free speech or expression. The Court sustained the school
requirement in Gobitis, but three years later overruled the decision
in West Virginia State Board of Education v. Barnette (1943), thus
recognizing the close affinity in all of the guarantees of the First
Amendment, that ’’the central issue’’ was not that of religion alone,
but ’ ’freedom of expression’ ’ as well (Gunther, 1985, p. 1511; see also,
Braunfeld v. Brown (1961), McGowan v. Maryland (1961), and Sherbert v.
Verner (1963), all of which related to actions derived from beliefs).
Of course, such exemptions are not granted by the Court in a
capricious way, but as Tribe (1978) cautioned: ’ ’ One who objects on
free exercise grounds to a regulation or requirement must ground the
objection upon a sincerely held religious belief’’ (p. 859). As has
been duly noted, a ’ ’religious belief’’ is not a narrow category by
modern judicial interpretation. Citing United States v. Ballard
(1944), Tribe further observed that the Court can test the sincerity,
but not the truth of a claim (p. 859), which was carefully delineated
in Justice Douglas’ majority opinion in Ballard:
Freedom of thought, which includes freedom of religious belief,
is basic in a society of free men. . . . It embraces the right
to maintain theories of life and of death and of the hereafter
which are rank heresy to orthodox faiths. . . . Men may believe
what they cannot prove. They may not be put to the proof of
their religious doctrines or beliefs, (pp. 86-87)
100
The Court has matured a great deal since Reynolds, and it is
recognized that the Mormon cases involved more than a testing of the
actions based on belief. At the time of its decision in Reynolds,
there was a great antipathy for the whole Mormon movement, a fact
which caused Tribe (1978) to remark: "Few decisions better illustrate
how amorphous goals may serve to mask religious persecution" (p. 854).
To demonstrate the single-sidedness of the issue, he further
commented: "Little is demonstrated by the fact that the law’s
defenders could invoke a goal as attenuated as the ’preservation of
monogamous marriage;’ that might also be said of a law compelling
priests and nuns to marry" (p. 854).
Actually what has occurred is that the Court seems to have opted
to settle such matters on the basis of freedom of expression rather
than freedom of exercise of one’s religion. This seems to be
especially evident in the Jehovah’s Witnesses flag salute cases and
formed much of the grounds for the Court’s decision in Widmar v.
Vincent (1981).
Thus the courts are not the testing pads for the truth of belief;
this is not within the parameters of the First Amendment. But even
for attorneys and judges to enter the arena of assaying sincerity
might be considered entrance into an area which has the entrapments of
an enemy minefield. How then does the Court determine "establishment"
and "free exercise" violations?
Testing an Establishment Violation.
Though the free-exercise clause was applied to the states in
1940, the establishment clause was not so applied until 1947 in the
101
Everson decision. From that decision came the first prong of the
so-called "three-pronged" test in Lemon v. Kurtzman (1971)— secular
purpose, primary secular effect, and absence of governmental
entanglement. The question in Everson, that of reimbursement to
parents of transportation costs incurred in sending their children to
school, was concluded that since both public and private school
parents were reimbursed, there was in essence a secular purpose which
outweighed any establishment issue. The decision was a split one, but
important to this study is the principle which came from the decision.
It was in this case that Justice Black, though writing the majority
opinion, recalled as a definitive statement of the meaning of the
religious clauses of the First Amendment, Jefferson’s metaphor, "a
wall of separation between church and state" (p. 16), which Tribe
(1978) suggested, "furnishes less guidance than metaphor" (p. 820).
That may well be, but the fact is that the words of Jefferson were
used more for guidance in the subsequent decisions.
But it was not merely the tone of Jefferson’s words which set the
stage for the anti-establishment decisions which followed, for Black
and Rutledge also spelled out the Jeffersonian reasons for such "a
wall." These, of course, were the dangers of social strife involved
in governmental aid, strife which was common to the Old World, though
one might agree with M.E. White (1983) who countered this claim by
stating "that [danger of social strife] alone does not justify
singling it out constitutionally," and further, that ’’[pJroponents of
this justification must establish further that religion is
signficantly more divisive than other sources of social discord, such
102
as economic condition, race, sex, and political ideology" (p. 97).
Too, one must question whether or not this is a viable issue in the
growing pluralism and resultant compromise in contemporary society.
The tendency seems to be one of syncretism rather than division.
The "secular purpose" test was somewhat mitigated in Zorach v.
Clausen (1952), as the Court held that religion should be
"accommodated" in certain situations. The situation in Zorach
pertained to students being allowed to leave the school premises in
order to attend religious classes. The school prayer cases which
began with Engel v. Vitale (1962), however, demonstrated that the
Court had no intention of straying from its basic pattern of strict
interpretation of the establishment clause. Justice Black, writing
the majority opinion, compared the prayer issue to the reasons for
which the early colonists left England seeking religious freedom in
the New World (p. 425), though Justice Douglas in his concurring
opinion admitted, "I cannot say that to authorize this prayer is to
establish a religion in the strictly historic meaning of those words"
(p. 443).
The second of the tests was announced in the Court’s decision in
Abington Township School District v. Schempp (1963). To "secular
purpose" was added the concept of "primary effect" which must not
advance or inhibit religion (p. 222). And to this was added the
"nonentanglement" rule, introduced in Walz v. Tax Commission (1970), a
case which upheld the constitutionality of tax exemptions for
churches.
The "entanglement prong" of the establishment-clause test has
103
addressed two distinct concerns: administrative entanglement, which
Tribe (1978) stated "focuses on institutional interference between
church and state and reflects the fear of those, like Roger Williams,
who thought that government, unless carefully controlled, might too
readily intrude into the spiritual realm," and political divisiveness,
which he noted to be the "Jeffersonian fear of church intrusion"
(p. 866). Whereas the aim of the administrative entanglement category
has been the avoidance of excessive overlap of church and government
affairs, the political divisiveness category has been concerned with
the political division of society along religious lines.
Chief Justice Burger first presented the political divisiveness
category of entanglement in Lemon v. Kurtzman (1971, p. 622), but
because political divisiveness alone has been insufficient to
invalidate a statute (see, e.g.. Committee for Public Education v.
Nyquist, 1973; Lemon v. Kurtzman, 1971; Meek v. Pittinger, 1975),
adminstrative entanglement has been the more important of the two
categories. Nevertheless, as the Supreme Court warned in Committee
for Public Education v. Nyquist (1973): "[W]hile the prospect of such
divisiveness may not alone warrant the invalidation of state laws that
otherwise survive the careful scrutiny required by the decisions of
this Court, it is certainly a ’warning signal’ not to be ignored"
(pp. 797-798).
In fact. Justice Harlan cogently described the problems of
political divisiveness in his separate opinion in Walz v. Tax
Commission (1970), where he observed that governmental involvement in
programs concerning religion
104
may be so direct or in such degree as to engender a risk of
politicizing religion, . . . [Rjeligious groups inevitably
represent certain points of view and not infrequently assert them
in the political arena, as evidenced by the continuing debate
respecting birth control and abortion laws. Yet history cautions
that political fragmentation on sectarian lines must be guarded
against. . . . [GJovernment participation in certain programs,
whose very nature is apt to entangle the state in details of
administration and planning, may escalate to the point of
inviting undue fragmentation, (p. 695)
All three tests were then applied together in Lemon v. Kurtzman
(1971), and the "three-pronged" test was announced (see pp. 612-613).
In Lemon it was noted that all three components of the "three-pronged
test" are independent of each other: A statute or regulation may pass
muster on one or two of them, fail on the third and thus be declared
unconstitutional. This threefold test is now the basic standard by
which establishment issues are tested, though Chief Justice Burger
stated in Lemon that it provides little more than "a blurred,
indistinct, and variable barrier depending on all the circumstances of
a particular relationship" (p. 64). Too, since Lemon, the Court has
"repeatedly emphasized [its] unwillingness to be confined to any
[particular] test or criterion in this sensitive area" (Lynch v.
Donnelly, 1984, p. 1362; see also Committee for Public Education and
Religious Liberty v. Nyquist, 1973, Larson v. Valente, 1982; Marsh v.
Chambers, 1983; Tilton v. Richardson, 1971).
Testing a Free-Exercise Violation.
That the Free Exercise Clause should have received first
attention as being applied to the States through the principle of
incorporation is obvious. A violation of the Free Exercise Clause is
more directly related to the question of deprivation of rights and
105
would trigger a due process type of litigation. Too, a Free-Exercise
violation often involves the issue of freedom of expression (see, e.g.
Cantwell v. Connecticut, 1940; Murdock v. Pennsylvania, 1943;
Schneider v. Town of Irvington, 1939), or the concept of
content-neutrality with regard to expression (see, e.g. Police
Department of the City of Chicago v. Mosley, 1972), both of which are
closely connected and stand in a privileged constitutional position in
any lawsuit.
There have developed, then, two basic tests employed to test a
free exercise violation. The first is that of the "least restrictive
means to a compelling end." Again, this principle can be traced back
to the decision in Cantwell v. Connecticut (1940) which by the
principle of incorporation made the free exercise clause applicable to
the States. Cantwell involved a state statute forbidding the
solicitation of contributions of anything of value by religious,
charitable, or philanthropic causes without obtaining official
approval. Three members of the Jehovah’s Witnesses were convicted
under the statute for selling books, distributing pamphlets, and
soliciting contributions or donations. Their convictions were
affirmed in the state courts on the ground that they were soliciting
funds and that the statute was valid as an attempt to protect the
public from fraud.
The Supreme Court, however, set aside the convictions, holding
that although a "general regulation, in the public interest, of
solicitation, which does not involve any religious test and does not
unreasonably obstruct or delay the collection of funds, is not open to
106
any constitutional objections" (p. 305), to "condition the
solicitation of aid for the perpetuation of religious views or systems
upon a license, the grant of which rests in the exercise of a
determination by state authority as to what is a religious cause" (p.
307), is an invalid prior restraint on the free exercise of religion.
Even after the First Amendment’s free exercise clause was
incorporated into the Fourteenth Amendment in Cantwell, the Supreme
Court often avoided the religious issue. For example, in Martin v.
Struthers (1943), another Jehovah’s Witness case, the Court’s majority
opinion relied on free speech and press grounds alone to invalidate a
city ordinance making it unlawful to knock on doors or ring doorbells
to summon the occupants to the door to receive handbills or other
literature.
In Cantwell the statute which required licensing for solicitation
on the streets was defensible as a means of protecting the public from
fraud as well as regulating traffic in a way of preserving peace,
safety and order (pp. 306-307). The Court, nevertheless, found that
though the city had a legitimate purpose in regulating "the times, the
places, and the manner of soliciting upon its streets" (p. 304), it
could not "condition the solicitation of aid for the perpetuation of
religious views or systems upon a license" in that such a process
would "lay a forbidden burden upon the exercise of liberty protected
by the Constitution" (p. 307). This principle was reflected three
years later in Murdock v. Pennsylvania (1943), the Court declaring
that "freedom of religion [is] in a preferred position" (p. 115).
Two later decisions, Sherbert v. Verner (1963) and Wisconsin
107
V.Yoder (1972), have provided a greatly amplified concept of the
freedom of religion. The first of these related to a Seventh Day
Adventist woman who was discharged from her place of employment
because of refusal to work on a Saturday. Unable to find a new job,
she applied for and was refused unemployment compensation, the South
Carolina State Unemployment Commission declaring that she had refused
suitable work. But the Court overruled the State regulation delaring
that "the liberties of religion may [not] be infringed by the denial
of or placing of conditions upon a benefit or privilege" (Sherbert,
1963, p. 404).
In Wisconsin v. Yoder (1972) the concept of free exercise was
strengthened as the Court declared that Amish parents could not be
forced to send their children to school beyond the eighth grade, thus
noting that the State’s interest in education for children could not
be "totally free from a balancing process when it impinges on
fundamental rights and interests, such as those specifically protected
by the Free Exercise Clause of the First Amendment, and the
traditional interest of parents with respect to the upbringing of
their children. . . " (p. 214). Tribe (1978) and others have urged
the Court to adopt a principle of neutrality toward religion (see also
Kurland, 1972), but have met with no success. Rather the Court’s
principle, according to Tribe, has been one of accommodation, that
"granting religious exemptions" has been regarded as "hostility toward
religion rather than hailed as the essence of neutrality" (p. 852).
The second and certainly a more subjective means of testing a
free exercise violation is that of examining the "sincerity and
108
centrality" of the belief. The second prong of the so-called
"three-pronged" Lemon test also relates to this question of
free-exercise. For example, this second test, that of the primary
effect being neither a means of advancing nor of inhibiting religion
must be used in a balancing way with free exercise. But more basic
than this is the principle that "[o]ne who objects on free exercise
grounds to a regulation or requirement must ground the objection upon
a sincerely held religious belief" (Tribe, 1978, p. 859). The Court
has declared that it will not consider whether or not a particular
belief is true— only that it is sincerely held (see Fowler v. Rhode
Island, 1953; United States v. Ballard, 1944).
It was, however. United States v. Seeger (1965) which became the
touchstone of the principle of a sincerely held belief, for the Court
declared that it was not limited to a theistic belief only, but to any
sincerely held belief which occupied "a place in the life of its
possessor parallel to that filled by the orthodox belief in God, . .
." (p. 166). Any test for free exercise, therefore, must be greatly
influenced by the new interpretation of religion which the Court
articulated in Seeger and has certainly brought an expansion to the
free exercise clause. As Tribe (1978) noted:
[CJourts have avoided the Constitutional question by construing
the applicable statutes to include non-theistic groups,
interpreting "religion broadly in terms of the social function of
the group rather than the context of its beliefs." This
functional approach has become a significant protection for
unpopular and unconventional sects and represents an important
development if the free exercise clause is to continue to fulfill
its "historic purpose." (p. 830)
Thus the Court has utilized two tests: the least restrictive
109
means to a desired end, and the sincerity and centrality of the belief
to be tested. Beginning with the application of the free exercise
idea to the States in Cantwell, the decisions of Sherbert and Yoder
"point even more clearly to a wide berth for religious freedom"
(Tribe, 1978, p. 857).
The Priority of the Free Exercise Clause.
In cases of conflict, it seems clear that free exercise is to be
given the nod in any conflict with anti-establishment principles.
This seems to be the latent meaning in the cases referred to. Even
more to the point, it seems that the Supreme Court has attempted a
posture of accommodation as the best solution to handling the
religious questions which have become multitudinous with the infusion
into American society of many non-theistic religions, thus adding to
the pluralism which the Framers of the Constitution may never have
envisioned.
It appears, as Tribe (1978) suggested, that the Court "in the age
of the affirmative state" must "make active provision for maximum
diversity; . . ," adding that "it seems doubtful that sacrificing
religious freedom on the altar of anti-establishment would do justice
to the hopes of the Framers— or to a coherent vision of religious
autonomy in the affirmative state" (p. 834). And of greatest
significance is that this is probably more in keeping with the
original design of the Framers, as he further declared: "Whenever a
free exercise claim conflicts with an absolute non-establishment
110
theory, the support of the former would be more faithful to the
consensus present at the time of the Constitutional Convention and of
the First Congress" (p. 819).
Ill
CHAPTER III
WIDMAR: A FIRST
AND FOURTEENTH AMENDMENT ANALYSIS
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,
A university legitimately may regard some subjects
as more relevant to its educational mission than
others. But the university, like the police
officer, may not allow its agreement or
disagreement with the viewpoint of a particular
speaker to determine whether access to a forum
will be granted. If a state university is to deny
recognition to a student organization— or is to
give it a lesser right to use school facilities
than other student groups— it must have a valid
reason for doing so.
Justice Stevens, concurring in
Widmar v. Vincent (1981, p. 280)
While Chapter II provided the legal and historical background of
the interpretation of the two religious clauses developed through the
judicial system, the purpose of Chapter III was to specifically relate
those prior decisions to the rights of equal access by student
religious groups to public campuses of higher education. This
question, of course, was in part the raison d’etre of the study, and
it was the question which the Supreme Court decided in December, 1981,
in its landmark decision in Widmar v. Vincent,
Overview
Widmar was conditioned by both the Establishment and Free
112
Exercise cases which preceded it, and it was envisioned that the Court
would, in Widmar, resolve many of the issues regarding the religious
clauses which seemed to be left hanging in prior holdings. After all.
Chief Justice Burger had himself noted a weakness in the supposedly
solid three-pronged Lemon test. Referring to the religious clauses as
"opaque" (Lemon v. Kurtzman, 1971, p. 612), he went on to declare that
the test which was supposed to clarify whether or not a particular
issue was an Establishment violation, provided little more than "a
blurred, indistinct, and variable barrier depending on all the
circumstances of a particular relationship" (p. 614). So it seemed
that there would be some further clarification which would come from
the Widmar case.
In addition to the issues involved in the Establishment and Free
Exercise cases which preceded Widmar, there were a number of corollary
issues which had developed from those decisions. As has been noted,
even though fraught with inadequacies, the Lemon tests of secular
purpose, primary effect of neither advancing nor inhibiting religion,
and non-exessive governmental entanglement were still the primary
bases on which an establishment issue would be reviewed. In Free
Exercise issues, on the other hand, though there were the two tests of
least restrictive means to a compelling state interest and that of
sincerity and centrality of belief, the Court often based its decision
solely on the First Amendment guarantee of free speech or press (see,
e.g. Cantwell v. Connecticut, 1940; Martin v. Struthers, 1943),
In Martin, for instance, the Court preferred to ground its
decision on freedom of speech and press alone to invalidate a city
113
ordinance which made it unlawful to knock on doors or ring doorbells
to summon the occupants to the door to receive handbills and other
kinds of religious literature, though eight years later in Breard v.
Alexandria (1951), the Court sustained such an ordinance making
solicitation contingent upon the homeowner’s prior consent.
What this indicates is that there is no fixed star when it comes
to the decisions of the Court in such matters; rather, the Court may
apply the religious guarantees or it may turn to the corollary rights
embodied in the First Amendment, and so it was with Widmar. Appearing
primarily as an Establishment issue, the lower courts were forced to
deal with other issues which related to Free Exercise— issues such as
freedom of speech and the concept of the university as ’ ’the
marketplace of ideas" (see, e.g., Keyishian v. Board of Regents,
1967), the concept of institutional recognition of student groups
(see, e.g.. Gay Lib v. University of Missouri, 1978; Healy v. James,
1972), or constitutional freedoms and academic life (see, e.g.. Tinker
V. Des Moines Independent School District, 1969).
Primary to an understanding of Widmar, in fact, is the whole
issue of exclusion because of content, an issue similar to the
"marketplace of ideas" concept and expressly articulated in Police
Department of the City of Chicago v. Mosley (1972), a case in which
the Court invalidated a city ordinance banning certain types of
expression on city streets. The Court’s opinion in this case is
particularly relevant to Widmar:
To permit the continued building of our politics and culture, and
to assure self-fulfillment for each individual, our people are
guaranteed the right to express any thought, free from government
114
censorship. Any restriction on expressive activity because of
its content would completely undercut the "profound national
commitment to the principle that debate on public issues should
be uninhibited, robust and wide-open." New York Times Co. v.
Sullivan, at 270.
Government may not grant the use of a forum to people whose
views it finds acceptable, but deny use to those wishing to
express less favored or more controversial views. . . . And it
may not select which issues are worth discussing or debating in
public facilities. There is an "equality of status in the field
of ideas," and government must afford all views an equal
opportunity to be heard. Once a forum is opened up to assembly
or speaking by some groups, government may not prohibit others
from assembling or speaking on the bases of what they intend to
say. Selective exclusions from a public forum may not be based
on content alone, and may not be justified by reference to
content alone. (pp. 95-96, emphasis added)
But at this point a number of cases provide an open window
through which one can perhaps best view the dissonance apparent in
Widmar- related First Amendment issues prior to the Supreme Court’s
decision in 1981, the first four of which relate to the question of
equal access and the fifth to the question of official recognition.
The first is Johnson v. Huntington Beach Union High School District
(1977). Though primarily applicable to secondary education rather
than to higher education, the particular issues involved are very
similar to those decided in Widmar v. Vincent (1981). In Johnson, the
appellees asked for the upholding of the rights of voluntary Bible
study clubs to meet and conduct activities on public high school
campuses during the school day. This was denied by the school
district as an Establishment Clause violation.
In the California judicial system, the courts held for the
defendants, declaring that "school recognition of plaintiff’s Bible
study club would impermissibly advance religion and would cause the
state to penetrate the federal and state constitutional barriers
11
between church and state" (p. 46). The California courts were
persuaded by the school district’s contention that since there would
be expenditures on lights, heat, use of facilities, and the time of a
paid faculty sponsor, this would place an imprimatur on religious
activity and be in violation of the third prong of the Lemon test (pp.
31-32).
In a dissenting opinion. Judge McDaniels repeatedly argued that
the court had decided the issue on the basis of speculations of what
could happen and not on the "facts." What was sought, he felt, was an
accommodation of religion, not an advance or excessive entanglement
(pp. 56-57), and he concluded: "The liberties of expression and
association, the freedom of a public forum, and the right to the equal
protection of the laws are in a sense all of a single fabric which is
the fabric of free and equal communication as well as the right to
impart" (p. 58),
A second case likewise involved a high school setting. In
Brandon v. Board of Education (1980), a number of students who formed
a group called "Students for Voluntary Prayer" sought for and were
denied permission to meet for prayer in a classroom before the
beginning of classes. Using the Lemon v. Kurtzman (1971) tests, the
court concluded that to grant such permission would be in violation of
the "primary effect" standard:
To an impressionable student, even the mere appearance of secular
involvement in religious activities might indicate that the state
has placed its imprimatur on the particular religious creed.
This symbolic inference is too dangerous to permit. . . . An
adolescent may perceive "voluntary" school prayer in a different
light if he were to see the captain of the school’s football
team, the student body president, or the leading actress in a
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dramatic production participating in communal prayer meetings in
the "captive audience" setting of a school. (Brandon, 1980, p.
978)
There are several problems latent in this decision which are not
pertinent to the discussion of Widmar. There is, however, one
important point, and that relates to the concept of a "captive
audience." Though one could argue that point with regard to Brandon,
it nevertheless denotes an important distinction between the milieu of
secondary education as compared with that of higher education. This
has been noted by a number of commentators as evidenced in the
comments of Michaelson (1964):
Students in elementary and secondary schools come under
compulsory school attendance laws whereas these laws do not apply
to students in higher education. Furthermore, there is an
obvious difference in maturity level between a student in the
eighth or ninth grade, for example, and a college or university
student. Such factors as differences in age and maturity level
could be of considerable importance in determining the
constitutionality of some practices at the higher education
level, (p. 345; see also O’Hair v. Andrus, 1979)
The third and at this point the case most closely parallelling
Widmar was Keegan v. University of Delaware (1976). In an opinion
written by Justice McNeilly, the Supreme Court of Delaware held:
"[U]niversity regulation prohibiting. . .worship services in commons
rooms of dormitory constituted a burden on students’ constitutional
rights to freely exercise their religion and [was] thus a violation of
the free exercise clause of the First Amendment" (p. 14).
There were three questions before the high court in Delaware: (1)
Would allowance of religious worship in campus dormitories run afoul
of prescribed tests for violation of the Establishment Clause of the
Federal Constitution? (2) Did the University policy constitute a
117
legally recognizable burden on the students’ rights to freely exercise
their religion? And (3) was there a compelling State interest which
would justify such a burden on students’ rights to freely exercise
their religion?
The Delaware Supreme Court answered these questions in a
favorable way for the appellants, holding that their use of the
commons room of the dormitory as was accorded other group activities
could reflect a ’ ’lawful accommodation’ ’ of religious activities (p.
16). But at this point one should recall that the principle of
’’lawful accommodation’ ’ was previously articulated in Everson v. Board
of Education (1947, while the flip side of the same coin, that
’ ’promotion and advancement’ ’ of religion is unconstitutional, was the
principle articulated in McCollum v. Board of Education (1948). But
to the Delaware Supreme Court, the protection of the freedom of
religion guarantee was paramount (pp. 17-18), even if the scales
tipped decidedly on the side of the establishment proscription.
However, Keegan did not become an immediate precedent in the
debate, for three years later the district court in Washington ruled
just the opposite in Dittman v. Western Washington University (1980).
Again, students sought an injunction against the university policy
which restricted the use of university facilities for student
religious meetings to twice each quarter and charged the student
groups full rental value for their use while granting free and
unlimited use to other groups, though on a first-come, first-served
basis.
The plaintiffs contended that the university’s policy violated
118
their rights to free speech, free association and free exercise of
religion as well as deprived them or their right to equal protection
of the law. The court, as had many such prior tribunals, stated that
for the university to do otherwise would constitute an establishment
violation because it "would constitute an advancement of religion by
the state" (Dittman v. Western Washington University, 1980, p. 5).
Applying the three-pronged Lemon standard, the court concluded that
failure to uphold the policy of the university would have the primary
effect of advancing religion by "placing the imprimatur of government
upon the religious activities being conducted in the facilities"
(p. 4). Furthermore, the fact that there was allowance for two such
meetings per quarter led the court to deny that there was any free
exercise violation and having determined that, the question of free
speech and freedom of association claims were satisfied (p. 7). The
question which must be asked would relate to the nature of the other
student organizations allowed on the Western Washington University
Campus. Did the university place its imprimatur on all organizations
which had a greater degree of access to its facilities than the
student religious groups? Second, were other groups restricted to
two meetings each quarter? The third question has already been
answered; the student religious groups were discriminated against by
the requirement that they pay rent for use of the facilities.
The final case which had pertinence to Widmar was Healy v. James
(1972) where the Court not only stated the importance of institutional
recognition for student groups, but included a significant statement
regarding the freedom of association:
119
Among the rights protected by the First Amendment is the right of
individuals to associate to further their personal beliefs.
While the freedom of association is not explicitly set out in the
Amendment, it has long been held to be implicit in the freedom of
speech, assembly and petition. . . . There can be no doubt that
denial of official recognition, without justification, to college
organizations burdens or abridges that associational right, (p.
181; see also NAACP v. Alabama, 1958)
With all of that in mind, the examination now turns to the three
separate opinions in Widmar. Each of the cases were examined as to
(1) the argumentation, (2) the analysis and decision of the court, and
(3) the appraisal of the decision. Since the background was the same
for all three cases, it was reviewed only in relation to the first of
the three.
Chess V. Widmar (1979)
Background of the Case
At issue before the court of original jurisdiction— the United
States District Court for Western Missouri— was a regulation adopted
by the Board of Curators of the University of Missouri in 1972,
providing in pertinent part:
No university buildings or grounds (except chapels as herein
provided) may be used for purposes of religious worship or
religious teaching by either student or nonstudent groups.
Student congregations of local churches or of recognized
denominations or sects, although not technically recognized
campus groups, may use the facilities . . . under the same
regulations that apply to recognized campus organizations
provided that no University facilities may be used for purposes
of religious worship or religious teaching. (Chess v. Widmar,
1979, p. 909)
The Board of Curators maintained that such a regulation was
mandated not only by the Establishment Clause of the First Amendment
(as incorporated into the Fourteenth Amendment), but also by
Missouri's Constitution and the state’s long history of strict
120
separation of church and state which "insists upon a degree of
separation of church and state to probably a higher degree than that
required by the First Amendment. ..." (Chess v. Widmar, 1979, p.
917, quoting Luetkeymeyer v. Kaufman, 1973, p. 386). Nevertheless,
from 1973 until 1977, Cornerstone, a registered nondenominational
organization of active Christian students at the University of
Missouri— Kansas City (UMKC), had regularly received permission to
conduct its meetings in UMKC facilities (e.g., in campus classrooms
and in the student center),
A typical Cornerstone meeting on campus included prayer, hymns,
Bible commentary, and discussion of religious views and experiences,
its avowed purpose being "to promote a knowledge and awareness of
Jesus Christ on campus, and also, of course, to encourage one another
in the faith and to grow in the grace and knowledge of our Lord Jesus
Christ" (Chess v. Widmar, 1979, p. 911). However, no UMKC official
had ever authorized any student organization, including Cornerstone,
to use a UMKC facility for a meeting where there was full knowledge
that the purposes of the meeting involved religious worship or
religious teaching.
Actually, in early January, 1977, when Cornerstone requested the
use of two rooms for two and one-half hours on every Saturday night,
from January 15, 1977 through May, 1977, UMKC officials requested
clarification as to the activities to be conducted at the proposed
meetings and were advised that such activities included the
aforementioned religious worship. Accordingly, the University refused
permission for the on-campus meetings, including Cornerstone's
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subsequent request to hold small group Bible studies on the University
lawn; and in response to these refusals 11 student members from
Cornerstone (including Florian Chess as named plaintiff) filed an
action in the United States District Court, Western District of
Missouri, for declaratory judgment and injunctive relief, alleging
generally that the University had unconstitutionally deprived them of
their rights to the free exercise of religion, free speech, and equal
protection of the law.
The named defendants were Gary Widmar, Dean of Students at UMKC,
and the University's Board of Curators, who argued alternatively that
the State of Missouri's interest in maintaining a strict separation of
church and state was a sufficiently compelling interest to justify
whatever constitutional infringement, if any, had resulted from the
ban on religious worship in UMKC-owned facilities. At a pretrial
conference both parties agreed to the district court judge's
suggestion that the case could be determined on the basis of submitted
stipulated facts; after the stipulations were filed, cross-motions for
summary judgment were made. In any event, the judge's inquiry called
for some complicated line drawing because, overall, no fixed, per se
rules could be framed for such cases.
For one thing, it was one of those mixed First Amendment cases
(i.e., a case in which the two religion clauses are pitted against
each other) wherein the brevity of the First Amendment and the
absolute language in which it is cast presents a court with a narrow
channel in which to steer a course between the Scylla and Charybdis of
the Establishment and Free Exercise clauses. As Chief Justice Burger
122
explained in Lemon v. Kurtzman (1971), the purpose of the two clauses
is "to prevent, as far as possible, the intrusion of either [the
church or the state] into the precincts of the other." But at the
same time, he recognized that "total separation is not possible in an
absolute sense. Some relationship between government and religious
organizations is inevitable" (p. 614).
More specifically, while the Cornerstone plaintiffs alleged that
the University’s ban on religious worship in UMKC-owned facilities
violated their free exercise of religion rights, the University
defendants countered with the assertion that if the University
permitted Cornerstone to practice such religious activities on campus,
it would have the primary effect of advancing religion, thus violating
the First Amendment’s establishment clause (see, e.g., Tilton v.
Richardson, 1970; Walz v. Tax Commission, 1970). But in Committee for
Public Education v. Nyquist (1973) the Supreme Court made it clear
that "not every law that confers an 'indirectremote,' or
’incidental’ benefit upon [religion] is, for that reason alone,
constitutionally invalid" (p. 771). On the other hand. Justice
Brennan, concurring in Abington School District v. Schempp (1963),
pointed out that government "must be steadfastly neutral in all
matters of faith, and neither favor nor inhibit religion" (p. 299).
Yet, at the same time, and in the same case, the Supreme Court
recognized "that religion had been closely identified with our history
and government" and that the country’s founders "believed devotedly
that there was a God and that the inalienable rights of man were
rooted in Him" (Abington, p. 213); and in Engle v. Vitale (1962) the
123
Court noted that indeed "[t]he history of man is inseparable from the
history of religion" (p. 434), and in Zorach v. Clauson (1952) that
"[w]e are a religious people whose institutions presuppose a Supreme
Being" (p. 313).
In Everson v. Board of Education (1947), however, the Court
observed that because "[a] large portion of early settlers of this
country came here from Europe to escape the bondage of laws which
compelled them to support and attend government favored churches" (p.
8), the Establishment Clause bespeaks "a government. . , stripped of
all power to support, or otherwise to assist any or all religions. . .
." (p. 11), and in Abington the Court adopted Justice Rutledge's words
in Everson that "the Establishment Clause forbids 'every form of
public aid or support for religion'" (p. 217).
Argumentation
The foundation of the Cornerstone complaint was that they had
been deprived, "under color of state law, rights and privileges
guaranteed by the United States Constitution" in violation of 28
U.S.C, 1343 (1976). Cornerstone plaintiffs presented the following
claims in their action:
1. The University policy violated their right to the free
exercise of religion (pp. 913-914).
2. Even if there was an establishment clause issue involved, the
free exercise clause should have a preeminent position (p. 917).
3. The action of the University was that of prior restraint upon
religious speech (p. 918).
4. The University policy "of making the University Center
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(student union) available to student groups for all purposes except
religious purposes" was a denial of equal protection of the law (p.
919).
5. The University regulations could have been extended to
preclude such things as classroom discussions relating to theology,
invocations offered at varied institutional functions as well as
discussions between individuals, and therefore they should "be struck
down as vague and overbroad" (pp. 919-920).
The case for the University was based on the following two
premises:
1. The University's ban on the use of institutional facilities
was required by the Establishment Clause of the First Amendment (p.
914).
2. The State of Missouri had a sufficiently compelling state
interest in the maintenance of a strict separation of church and State
(p. 917). This premise was admitted to be stricter than that required
by the Federal Constitution.
Analysis and Decision of the Court
The district court held in favor of the defendants, the
University of Missouri, Kansas City. The opinion of the court was
written in answer to each of the five claims of the Cornerstone group,
and the analysis followed that line of reasoning.
The "Free Exercise" Argument. This argument never can be
considered in an isolated way. It must always be balanced with the
action required by the Establishment Clause. Though questions have
been raised concerning the inclusion of the Establishment Clause as a
125
part of the "privileges and immunities" doctrine, it nevertheless was
the current law and it would have been evasive to engage in some kind
of sophistry and ignore the question. Therefore the district court
began its consideration by the application of the three-pronged Lemon
test to the context of this case.
In answer to the questions relating to Secular Purpose and
Excessive Government Entanglement tests, the court held that both of
these would not conflict with a policy allowing religious groups the
use of the University facilities. But in an application of the
Primary Effect test, the court held that, based on Tilton v.
Richardson (1971), such use would have the effect of advancing
religion (p. 915).
Cornerstone, in its argument, had appealed to Keegan v.
University of Delaware (1976) to support its argument that the
University could allow religious groups to use the facilities without
it being branded as an establishment violation. The judgment of the
district court was that "the outcome in that case [Keegan] is not
supported by the controlling law" (p. 916). Further, the court
observed that Keegan did not include a discussion of the applicability
of Tilton, and consequently "the Supreme Court of Delaware’s opinion
in Keegan is of no value in deciding the establishment clause question
that is before this Court" (p. 917).
Preeminence of the "Free Exercise" Clause. Following naturally
from the first question is that of preeminence or subordination.
Cornerstone argued "that the Supreme Court has relegated the
establishment clause to a position inferior to that of the free
126
exercise clause" (p. 917). The district court countered that the free
exercise rights of Cornerstone were not infringed upon by the
University regulation. Citing Wisconsin v. Yoder (1972), the court
argued that invocation of the protection of the free exercise clause
required that Cornerstone’s members have a "deeply held religious
conviction" about the need to meet on campus, and since it was a
matter of "preference" rather than "conviction," sufficient protection
had been afforded them (p. 917).
The court, conjecturing about the possible infringement of the
plaintiffs' rights, nevertheless held that the State of Missouri had a
sufficiently compelling interest in the strict protection of the
separation of church and State" (p. 917), Then, turning to the
question of inferiority/preeminence, it cited Sherbert v. Verner
(1974) and Wisconsin v. Yoder (1972), These two cases, the court
declared, were not interpreted by the Supreme Court as they had been
argued by Cornerstone, and that the two religious clauses must "be
read together, with neither clause subordinate to the other" (p. 918).
Prior Restraint against Religious Speech. The district court
understood this argument to be a variation on the last one except in
this case— the establishment clause must yield to the freedom of
speech clause. Citing Abington (1963) and Tinker (1969), however,
the court concluded that "speech with religious content cannot be
treated in the same way as any other form of speech" and that "secular
intellectual liberties" are entitled to more protection than
"religious activity" (pp. 917-918).
Denial of Equal Protection and Access. The policy of equal
127
access had been given clarification by the courts because of minority
religious groups such as Jehovah’s Witnesses and the International
Society for Krishna Consciousness. But these cases had involved parks
(Fowler v. Rhode Island, 1953, and Saia v. New York, 1948), as well as
streets (Police Department v. Mosely, 1972), but n^ buildings. In
answer to this argument, however, the court made a blunder. It had
been established in the student affidavits that permission to hold
Bible studies on the University grounds had also been denied (see
supra), but seemingly in a failure to note that, the court held:
’ ’ Thus, if the university’s regulations were being applied to prohibit
plaintiffs from conducting religious services on the grounds,
sidewalks, or streets of the university, plaintiff’s equal protection
argument would have some force’’ (p. 919).
Vagueness and Overbreadth of Regulation. To this claim, the
district court declared that the regulation only referred to
’ ’religious worship or religious teaching" (p. 920). Secondly, the
statements of Cornerstone (probably through the letter from their
counsel) admitted that their meetings included "regular worship
services" (p. 920).
Appraisal of the Decision
The district court seemed to find little merit with the arguments
presented by Cornerstone. In addition, the court’s reliance on Tilton
seemed forced. Furthermore, Tilton had pertinence to the granting of
funds for the erection of buildings which were to be used for secular
purposes. The grants were available to church-related schools of
higher education on the same basis as other private institutions.
128
Cornerstone was not asking for a building which it might convert into
a place of biblical teaching and worship. Cornerstone’s meetings
involved an occasional use only.
Then, the court argued that "the practice that plaintiffs request
this Court to force upon the university is identical to the practice
that the Tilton Court found to have a primary effect of advancing
religion" (p. 915). The question before the Tilton Court had to do
with the 20-year limitation on the effect of the funding. For that
reason, the particular issue in Tilton was remanded. But how that
issue was "identical" to this case seemed to be a specious argument.
The cavalier way in which the district court dealt with the
Keegan decision failed to deal with the issues which it raised.
Indeed, to equate Widmar with Tilton and fault Keegan for failing to
deal with Tilton seemed to be a convoluted argument. Failing to
adequately link the importance of Tilton to Keegan weakened the
court’s conclusions. And though the fact that the Supreme Court
denied certiorari placed Keegan under a cloud of ambiguity, caution
should have been employed in using it as a precedent. But the
flip-side is that the same amount of caution should have been used in
dismissing it as irrelevant merely because one disagreed with the
finding. By denying certiorari, the Supreme Court allowed the Keegan
decision to stand. In effect then, the Court by denying certiorari
refused to hear the case, and it ends up in a sort of limbo to be used
as a particular court sees fit.
Regarding the State constitutional issue, one would have to agree
that, on its face, there seemed to be but a minimal deprivation of the
129
free exercise of religion to Cornerstone, and the distinction made
between preference and conviction was a sound one. However, the
accepted doctrine that the State of Missouri "insists on a degree of
separation of church and state to probably a higher degree than that
required by the First Amendment" (Leutkemeyer v. Kaufman, 1974, p.
386), invited a charge of inhibiting the free exercise of religion.
The court, though testing the sincerity of belief that meetings should
be held on campus and concluding that it was not a sincerely held
belief, nevertheless failed to employ the test of least obtrusive
means to Widmar. Since the district court accepted the university’s
argument that a granting of access was tantamount to an establishment
of religion, and in turn denied the argument of Cornerstone regarding
free exercise, then the court held that both religious clauses were
not considered equal and further, that free exercise must defer to the
establishment argument, a conclusion not in keeping with other Supreme
Court decisions (see, e.g. Tribe, 1978, pp. 819-833),
The banning of an officially recognized student organization from
the campus would seem to have a "chilling effect" on the organization.
In the testimony set forth in the opinion, there was noted a
significant decrease in attendance at the meetings because they were
moved off campus. It seemed as if Cornerstone was given official
recognition in name only. Though there are distinct differences,
there are some similarities between a university campus and a military
base in terms of both being resident communities. The action of UMKC
might therefore be compared to a community ordinance that all
religious groups had to meet outside the community or a regulation
130
which banned the use of chapels on military bases. Such an example
furnishes a clear case of the inhibiting of the free exercise or
religion. The military have seemingly had a much sounder approach.
Noting the community-character of the military base, religious
services have been provided within the boundaries of the base— and all
this without a successful challenge on the basis of First Amendment
rights.
The most telling blow against the decision of the district court
was noted in the appellate analysis. The district court opinion
stated that the Cornerstone’s claim would have force if "the
university’s regulations were being applied to prohibit plaintiffs
from conducting religious services on the grounds, sidewalks, or
streets of the university" (p. 919). But in sworn testimony, a
student, Jonathan Williams, stated that permission to meet on
university grounds had been denied (pp. 912-913). Also included in
his testimony was an amusing sidelight (though probably not to him)
which infers the "runaround" received from various administrative
officers when the students sought permission to meet on campus (p.
913, items 6 and 7).
Finally, it appeared that the court did not attempt to understand
the rather ambiguous language of the letter from Cornerstone’s
attorney, James M. Sweet, Jr. The statement that "to a casual
observer," the meetings would not correspond to a "traditional worship
service", seemingly should have alerted the court that there are many
definitions of worship. Yet the court’s decision turned largely on
that term. What is a religious service? Should the use of
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invocations, benedictions or other religious ceremonies be construed
to be worship services? Granted, the form is important, and the
University regulations allowed invocations and such at campus
functions. The larger description of the meeting as described by Mr,
Smart in his letter to Dean Widmar suggested that worship in a
"traditional sense" was not a part of the meetings.
Furthermore, one might argue if a student claimed to have had
some kind of esoteric experience in attending a music concert, that
could be claimed as a worship experience and thereby qualify the
concert as a worship service. Or one might conjecture that any oath
which in form invokes the name of deity and coupled with a verb is
thereby engaged in a form of worship, namely, prayer; for example,
what would happen if it were answered? To claim, as the court did,
that the students wished to hold "regular worship services" (p. 920)
did not square with the statements included in the evidence nor can it
be accurately stated what such a service was. However, the term was
not a problem to the U.S. Court of Appeals, Eighth Circuit. In fact,
the arguments set forth by the district court all but guaranteed the
students that they would have another day in court.
Chess V. Widmar (1980)
It is not necessary to review the background of the case in that
the arguments which were presented in the first case were basically
the same arguments used in the appeal.
Argumentation
The same foundational points were made in this attempt to secure
"declaratory judgment and injunctive relief" with respect to the
132
University regulation under which students were denied right to
conduct regular religious services in university owned buildings.
Analysis and Decision of the Court
After reviewing the opinion rendered by the district court, Judge
Heaney, writing for the majority, presented his analysis of the case.
At the outset of his opinion he stated: "[Rjeligious speech, like
other speech, is protected by the First Amendment" (p. 1315), His
second premise related to freedom of association as enjoying the same
protections as freedom of speech. Referring to NAACP v. Alabama
(1958), he observed that such freedom of association is irrevocably
tied to freedom of speech, and that such freedom to engage in
association is a liberty which is not limited to the scope of the
content of the beliefs sought to be advanced (p. 1315). He was in
effect disavowing the claim of the district court that religious
speech was not entitled to the same protection as other kinds of
speech. Therefore, once a public forum has been created, equal access
to that forum cannot be restricted by the content of the message.
Quoting from a University of Missouri publication. Judge Heaney
stressed the importance of the equal-access doctrine in that the
"University has undertaken to aid in the growth and development of the
’social and cultural awareness’ of its students by recognizing their
self-directed activities, . , ." (p. 1316), By this, the judge
continued, the University had created a public forum with only one
restriction: ”[N]o religious worship or religious teaching may take
place" (p. 1316). As noted in the commentary on the first court
decision, such was a contradiction within the stated regulations of
133
the University which allowed "prayer or other appropriate recognition
of religion at public functions held in University facilities"
(University Regulation No. 4.0314.0107). "This exception," Judge
Heaney noted, "created a greater danger of placing the University’s
imprimatur on religion that would granting Cornerstone's request for a
meeting place" (p. 1316, n. 7).
He then turned to a consideration of the application of the
three-pronged test by the lower court. Granting the correct
application of the first and third prongs of the test, he developed
his arguments against the application of the Primary Effect test by
the lower court, concluding:
We cannot agree, . . . that such a policy would have the primary
effect of advancing religion. Rather, it would have the primary
effect of advancing the University’s admittedly secular
purpose— to develop students' "social and cultural awareness as
well as [their] intellectual curiosity." It would simply permit
students to put their ideas and practices in competition with the
ideas and practices of other groups, religious or secular. It
would no more commit the University, its administration or its
faculty to religious goals that they are now committed to the
goals of the Students for a Democratic Society, the Young
Socialist Alliance, the Young Democrats or the Women's Union, (p.
1317, emphasis added)
The opinion then focused on a consideration of the concept of "an
establishment of religion." The judge quoted from Walz v. Tax
Commission (1970), that to the framers of the First Amendment "the
’establishment’ of a religion connoted sponsorship, financial
support, and active involvement of the sovereign in religious
activity" (p. 668, emphasis added). Applying each of these three
descriptive terms to the meaning of a neutral policy on the part of
the University, the judge concluded:
134
Under a neutral policy, the University would not sponsor
religious worship or teaching; sponsorship would lie with the
recognized student groups. Financial support would be minimal.
Finally, there would be no active involvement of the sovereign
because the University's role would be limited to determining the
time, place and manner of the event and would not extend to
approval or disapproval of the content, (p. 1317)
Judge Heaney further held that the policy of the University had a
primary effect not of advancing religion but of inhibiting it (p.
1317), and placed upon University officials the "delicate tasks of
defining religion, determining whether a proposed event involves
religious worship or teaching, and then monitoring events to ensure
that no prohibited activity takes place" (p. 1317, emphasis added).
These tasks placed the University in the middle of an Entanglement
proscription. Furthermore, as was declared in O'Hair v. Andrus
(1975); "[The Free Exercise Clause] compels government to make some
accommodation to religious reality and needs" (p. 935).
The question of what constituted a location for a public forum
was then analyzed. The judge's argument here followed two lines of
reasoning. First, he pointed out that the University made a
distinction between a park and a building. Recalling that the
University had banned Cornerstone from its grounds as well as its
buildings. Judge Heaney emphasized the words of the lower court in its
error of omission (p. 1318). Secondly, he said: "[T]he important
question is not the character of the property but the character of its
use" (p. 1318),
The University had created a forum in the University Center
(Student Union) and in that sense it was not different from a park,
grounds, or a sidewalk, but even more than some other forum, the judge
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pointed out, a university "connotes special First Amendment values"
(p. 1318) in its position as a "marketplace of ideas." Quoting from
John Henry Newman's, The Idea of a University, Judge Heaney stated
that ”[i]t is a place where inquiry is pushed forward, and discoveries
verified and perfected, and rashness rendered innocuous, and error
exposed, by the collision of mind with mind, and knowledge with
knowledge", and thus, he continued, "[t]o attempt to insulate
religious issues from this 'collision of mind with mind, and knowledge
with knowledge' is to deny the importance of religion in our history
and culture and to deprecate the role of the university community in
the maturation of youth" (p. 1319).
Questioning the lower court's dependency on Tilton, Judge Heaney
stated that the two cases were not identical:
There is no Tilton problem simply because the use of a student
forum provided by a university, turns, from time to time, to
religious activities as well as political, cultural and social
ones. The neutral accommodation by a public university of
students whose activities are religious is far different than the
total dedication of government-funded buildings to a sectarian
institution for sectarian purposes, (p. 1319)
Judge Heaney nevertheless noted the distinction between equal
access by students in higher education from those in secondary
education. He portrayed the supervisory needs of secondary students
as being a major consideration in a possible violation of excessive
governmental entanglement or even governmental sponsorship. His last
point was to define the university setting as one of community.
Because it is a community, students should expect a greater degree of
accommodation of religious needs (p. 1320).
The Court of Appeals consequently reversed the decision of the
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district court, and the cas^ was remanded for action consistent with
the appellate decision. A request for a rehearing was denied, two
judges dissenting.
However, one point of the dissenting judges is especially
puzzling. That was their reference to Judge Heaney’s critique of the
University policy which allowed prayers and other religious
observances at appropriate functions. In questioning Judge Heaney’s
reasoning, they stated that the panel disregarded the real question as
to
whether the state constitution mandates strict separation of
church and state when it comes to use of University buildings for
formalized or denominational worship services by a student group,
and whether that mandate overrides any infringement of the
students' free exercise rights under the United States
Constitution, (p. 1321)
What makes it puzzling is that this observation was overstating the
situtation in the case of Cornerstone. The term "formalized" is vague
and the group was not denominational. The dissenting opinion would
have held more weight if it had provided a thorough airing of the
issues involved in Keegan as well as in the case at hand.
Appraisal of the Decision
It is apparent that most of the criticism leveled at the decision
of the district court was resolved in this opinion. As noted earlier
in the study, a number of First Amendment decisions came together in
this case. The Lemon three-pronged test of establishment was at the
center of the case, and though the two courts arrived at different
conclusions concerning the Primary Effect test, the Lemon tests
appeared valid as a means of analysis.
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The public forum doctrine, having been developed from some of the
Jehovah’s Witnesses cases as well as those of other minority religious
groups (see, e.g., Heffron v. International Society for Krisna
Consciousness, 1981) was one of the central concepts in the hearing.
Both Walz V. Tax Commission (1970) and Police Department of the City
of Chicago v. Mosley (1972) were applied as relevant as well. The
panel in the Court of Appeals picked up on the concept of freedom of
association and noted that its substance is only meaningful when
combined with the freedom of speech.
It appears that the panel of the Court of Appeals dealt with each
issue from the earlier case and attempted to solve the seemingly
insoluble mid-point of balancing the two religious clauses. Central
to the decision was the panel’s reference to the University statement
that one of its purposes was in the promotion of student activities to
encourage ’ ’self-directed activity’’ which had the goal of developing
’’social and cultural awareness as well as intellectual curiosity,’ ’ a
program which ’ ’must be responsive to the various ethnic and
non-academic special interest groups within the University’ ’ (p. 1312,
n. 1), Judge Heaney’s opinion was especially strengthened by his
central point of demonstrating that student religious groups
generally, and Cornerstone in particular, fulfilled the stated purpose
of the university.
Widmar v. Vincent (1981)
The decision of the Court of Appeals was appealed to the Supreme
Court by the University. The case was argued on October 6, 1981 and
the decision of the Court was announced on December 8, 1981. The
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Court upheld the decision of the Court of Appeals by a vote of 8 to 1,
Justice White the lone dissenting voice. Justice Powell delivered the
Court’s opinion.
Argumentation
Justice Powell began by stating the major question before the
Court :
This case presents the question whether a state university, which
makes its facilities generally available for the activities of
registered student groups, may close its facilities to a
registered student group desiring to use the facilities for
religious worship and religious discussion, (p. 265)
This was followed with the background and the legal history of the
case. These facts have been presented in the sections preceding this
one.
Analysis and Decision of the Court
The Court’s analysis of the issues at hand began with a
discussion of the Public Forum doctrine. In effect, it stated that
the University, in creating a public forum ’’generally open for use by
student groups, . . . has assumed an obligation to justify its
discriminations and exclusions under applicable constitutional forms’ ’
(p. 267), reflecting directly upon the University of Missouri’s
institutional mission which was described as providing a "secular
education" for its students, a mission which "does not exempt its
actions from constitutional scrutiny" (p. 268), Cases which have
reference to the rights of speech and association are accorded special
treatment by the Supreme Court under the doctrine of Preferred
Position (see, e.g., Gitlow v. New York, 1925; Kovacs v. Cooper, 1949;
Millington, 1979, pp. 176, 179; Widmar v. Vincent, 1981, p. 276).
139
The Court then charged that "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" (p.
269). To the University's contention that "religious worship" is not
speech protected by the "free speech" guarantees of the First
Amendment or the "equal protection" guarantee of the Fourteenth (p.
269, n. 6), the Court replied: "[TJhe dissent seems to attempt a
distinction between the kinds of religious speech explicitly protected
by our cases and a new class of religious 'speech act[s]', . . .
constituting worship" (p. 269, n. 6). Referring to the dissenting
opinion of Justice White, who picked up on this very issue. Justice
Powell noted three difficulties with such a distinction:
First, the dissent fails to establish that the distinction has
intelligible content. There is no indication when "singing
hymns, reading scripture, and teaching biblical principles,"
. . . cease to be "singing, teaching, and reading"— all
apparently forms of "speech," despite their religious subject
matter— and become unprotected "worship."
Second, even if the distinction drew an arguably principled
line, it is highly doubtful that it would lie within the judicial
competence to administer. . . . Merely to draw the distinction
would require the university— and ultimately the courts— to
inquire into the significance of words and practices to different
religious faiths, and in varying circumstances by the same faith.
Such inquiries would tend inevitably to entangle the State with
religion in a manner forbidden by our cases.
Finally, the dissent fails to establish the relevance of the
distinction on which it seeks to rely. The dissent apparently
wishes to preserve the vitality of the Establishment Clause
.... But it gives no reasons why the Establishment Clause, or
any other provision of the Constitution, would require different
treatment for religious speech designed to win religious
converts, . . . than for religious worship by persons already
converted. It is far from clear that the State gives greater
support in the latter case than in the former, (p. 269, n. 6)
Therefore, it was necessary for the University to satisfy the
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requirements of a review which was appropriate for "content-based
exclusions" (p. 270).
The Court then considered the Establishment Clause issue,
applying the three-pronged test. As the courts before it, the Supreme
Court quickly affirmed that the first and third prongs of the test
were met; the only questions that remained involved the Primary
Effect test. The Court approached this difficulty from a different
direction than either of the two lower courts: "[T]he question is not
whether the creation of a religious forum would violate the
Establishment Clause. The University has opened its facilities for
use by student groups, and the question is whether it can exclude
groups because of the content of their speech" (p. 273),
The next phase of the Court’s argument was to articulate the
belief that any religious benefits derived from an open forum were
"incidental," adducing two factors in demonstration : (1) Such a forum
"does not confer any imprimatur of State approval on religious
sections or practices;" and (2) "the forum is available to a broad
class of nonreligious as well as religious speakers. . . . The
provision of benefits to so broad a spectrum of groups is an important
index of secular effect" (p. 274).
The University’s compelling interest in complying with the strict
provisions of the Missouri State Constitution was summarily dismissed
under the Supremacy Clause of the Federal Constitution which states:
"This Constitution, and the Laws of the United States which shall be
made in Pursuance thereof; . . . shall be the supreme Law of the Land;
and the Judges in every State shall be bound thereby, any Thing in the
14
Constitution or Laws of any State to the contrary notwithstanding"
(Article VI). Consequently, the Court noted that it was unnecessary
for them to decide if a State interest ever outweighed free speech
interests protected by the First Amendment. Furthermore, Justice
Powell noted that the State’s interest "in achieving greater
separation of church and State than is already ensured under the
Establishment Clause of the Federal Constitution— is limited by the
Free Exercise Clause and in this case by the Free Speech Clause as
well" (p. 276).
He then summed up the Court’s findings and on the basis of the
open forum policy of the University of Missouri, Kansas City, the
Court held for the Cornerstone appellees.
Appraisal of the Decision
That the Supreme Court upheld the decision of the Court of
Appeals was not a complete surprise in light of the carefully reasoned
and well-documented opinion of the appellate court. It might have
been expected, however, that the case would have been a review of the
major questions posed by the decisions in the two lower courts. This
case seemed to offer one of the best opportunities for the Court to
wrestle with the lines of distinction between the Establishment and
Free Exercise Clauses. At the outset, the case had introduced other
elements that pertained to freedom of speech, association, the public
forum doctrine, the question of content-neutrality, and equal
protection under the law. Accordingly, it was expected that the Court
would have responded to each of these issues. Thus, it seems curious
that the highest court in the land did not attempt some clarification
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between the two clauses.
Instead, in a clever approach to the problem, the Court ran an
oblique attack on the issue, approaching it from the direction of free
speech. Most of the Court's opinion was derived from the doctrine of
the public forum and the right of free speech. Establishment Clause
issues were dealt with very quickly. Of course, only one of the tests
required comment, but the Court neatly dispensed with the problem of
Primary Effect by noting that this would require the State or the
courts to distinguish which kind of speech could be validated by the
State. This done, there was no necessity to engage in a discussion of
the Free Exercise question.
The Court did deal with the issues of content-neutrality,
questions which had been raised in the two previous decisions.
Indeed, it seemed that the Supreme Court seized on this issue as a
means of dealing with the question without handling the problem areas
which exist between the two religious clauses. It might have been
expected that in light of some doubts about the validity of the Lemon
tests voiced in previous cases that the Court would have worked toward
a better formula for deciding establishment controversies. Also,
there is little in the decision which has direct pertinence to the
question of free exercise; rather, the matter was diverted to a
discussion of the other "freedoms" embodied in the First Amendment.
Thus the Court left the questions concerning the meaning and
distinctions between the two religious clauses open to further
deliberation. Even a comment from the Court on the validity or the
lack of validity of the argumentation of the Court of Appeals would
143
have provided some clarification, but the decision was akin to the
shock felt by a musician when a composition comes to a closure without
proper resolution. What had been hoped and even forecast to be a
clarifying decision untying the Gordian knot into which the religious
clauses had been tied has resulted in putting a few more loops in it
or at least drawing it tighter.
Concluding Observations
The fact that the Supreme Court decided Widmar not on the basis
of the religious clauses but on the question of content-based
exclusions in effect removed the case from the religious realm and
placed it in the category of a freedom of expression case. To the
Court, the fact that the University had created a forum generally open
to student groups made it mandatory that such groups as Cornerstone
have the same access to that forum.
Justice Stevens, though concurring in the judgment, nevertheless
was critical of the majority’s approach to the problem. His primary
concern was not that the Court had failed to address the problems of
the religious clauses but that the Court was involved in matters best
left in the hands of the University administrators: ’ ’ In my opinion,
the use of the terms ’compelling state interest’ and ’public forum’ to
analyze the question presented in this case may needlessly undermine
the academic freedom of public universities’’ (pp. 277-278), and he
continued:
University facilities— private or public— are maintained
primarily for the benefit of the student body and the faculty.
In performing their learning and teaching missions, the managers
of a university routinely make countless decisions based on the
content of communicative materials. They select books for
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inclusion in the library, they hire professors on the basis of
their academic philosophies, they select courses for inclusion in
the curriculum, and they reward scholars for what they have
written. In addition, in encouraging students to participate in
extracurricular activities, they necessarily make decisions
concerning the content of those activities.
Because every university’s resources are limited, an
educational institution must routinely make decisions concerning
the use of the time and space that is available for
extracurricular activities. In my judgment, it is both necessary
and appropriate for those decisions to evaluate the content of a
proposed student activity, (p. 278)
Justice Stevens also addressed the principal question advanced by
the University— the question of an establishment violation— but
seemed to dismiss it without adequate discussion, though this may be
attributed to the fact that Justice Powell had included this in his
opinion. However, to this fear which the University had of being
involved in an establishment violation. Justice Stevens replied:
”[S]ince the record discloses no danger that the University will
appear to sponsor any particular religion, and since student
participation in the Cornerstone meetings is entirely voluntary, the
Court properly concludes that the University’s fear is groundless”
(pp. 280-281), and if the situation of student religious groups was to
be compared with that of other groups, he observed:
It seems apparent that the policy under attack would allow groups
of young philosophers to meet to discuss their skepticism that a
Supreme Being exists, or a group of political scientists to meet
to debate the accuracy of the view that religion is the ’ ’opium of
the people.” If school facilities may be used to discuss
anticlerical doctrine, it seems to me that comparable use by a
group desiring to express a belief in God must also be permitted.
The fact that their expression of faith includes ceremonial
conduct is not, in my opinion, a sufficient reason for
suppressing their discussion entirely, (p. 281)
Justice White was the lone dissenter. His principal objection to
the Court’s decision was related to the question of freedom of speech:
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A large part of respondent’s argument, accepted by the court
below and accepted by the majority, is founded on the proposition
that because religious worship uses speech, it is protected by
the Free Speech Clause of the First Amendment. Not only is it
protected, they argue, but religious worship qua speech is not
different from any other variety of protected speech as a matter
of constitutional principle. 1 believe that this proposition is
plainly wrong. Were it right, the Religion Clauses would be
emptied of any independent meaning in circumstances in which
religious practice took the form of speech, (p. 284)
Though Justice White was addressing a real concern, that is, the
protection given to religious speech, he did not deal with the
question raised by the district court concerning religious speech
having less protection than other kinds of speech. It is apparent
then that Justice White’s main difficulty with the decision is in his
belief that the meetings held by Cornerstone were ’ ’worship services.”
For example, in a footnote, he disavowed the Court’s use of Heffron v.
International Society for Krishna Consciousness, Inc. (1981), Niemotko
V. Maryland (1951), and Saia v. New York (1948) by noting that none of
these involved a ’ ’worship” service (p. 284, n. 2). Though the
district court attempted to establish the fact that the meetings of
Cornerstone were worship services, the opinion of the appellate court
noted that ”[a]lthough these meetings would not appear to a casual
observer to correspond to a traditional worship service, there is no
doubt that worship is an important part of the general atmosphere”
(Chess V. Widmar, 1980, p. 1314).
That worship is a part of the ’’general atmosphere” seemed rather
difficult to equate with a worship service. Too, one may question
when a period given to biblical exposition, for instance, may result
in some kind of worshipful experience on the part of one or more of
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those listening to the instruction. The moment when teaching,
singing, Bible reading or prayer become worship is very difficult to
judge. To some, an Amy Grant concert may be a worship service while
to others such an attitude may take place while listening to the
university music department’s presentation of Handel’s ’’ Messiah,”
Bach’s ”B minor Mass,” or Brahms’ ’’ German Requiem.” In fact it could
be argued that genuine worship is not based on prescribed locations or
liturgy. Even Jesus Christ said that rather than having a
geographical locus or even a prescribed form, true worship was ”in
spirit and in truth” (John 4:23); both of these elements are difficult
to define precisely because they involve what goes on inside the
individual participant, not what comprise the various segments of a
meeting. Justice Powell recognized this as he commented on Justice
White’s dissent:
[T]he dissent fails to establish that the distinction has
intelligible content. There is no indication when ’ ’singing
hymns, reading scripture, and teaching biblical principles,”
cease to be ’’singing, teaching, and reading”— all apparently
forms of ’’speech,” despite their religious subject matter— and
become unprotected ’ ’worship.” (p. 269, n. 6)
To many, the Widmar decision provided encouragement that religion
was not being relegated to secondary importance in education, and they
took comfort in this neither noting its basis of decision nor caring
(that beautiful blend of ignorance and apathy again). Everyone who
had an interest in the case had an agenda which it was hoped the
Supreme Court would fulfil. As in previous religious cases, there
were the devotees of strict interpretation and those who contested for
strict neutrality as well as others who desired the Court to decide
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the matter as one of accommodating religion. Of course, the latter
group was the most satisfied. However, there were still some who were
not championing any one of these interpretations of the First
Amendment as much as they were anticipating a real airing of the
issues involved. To such, the decision of the Court was a ”cop-out”
because it addressed peripheral issues rather than striking at the
heart of the problem. The closest scrutiny paid to the hard issues of
the religious clauses were given by the Court of Appeals, arguments
which the Supreme Court, for the most part, ignored.
What has resulted then may be only a delayed response in facing
the issues of separation of Church and State in the United States.
One might ask the question as to whether the decision would have been
any different had the Supreme Court addressed the problems latent in
the interpretation of the religious clauses. If it had, perhaps it
could have moved back to the whole issue of whether or not the First
Amendment was incorporated into the Fourteenth, Further, assuming
that all of the rights embodied in the Bill of Rights were
incorporated, it would have been helpful had the Supreme Court
explained how the first clause, ’ ’ Congress shall make no law respecting
an establishment of religion” is a right, a violation of which would
trigger a due process action. What if the Court had discussed
Jefferson’s famous metaphor in light of other expressions of Jefferson
regarding the deity or discussed his plan for the University of
Virginia which did not shut religion out of campus life? The courts,
more than other branches of the government, must operate with a sense
of history— not just to find those elements which are in agreement
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with a particular point of view, but with a critical sense of history
which enters into every element which may be pertinent, whether in
agreement or disagreement. For example, the Court has seemingly never
even attempted to answer the objections to the principle of
incorporation which were articulated by Professors Fairman and
Morrison over three and a half decades ago (see Fairman, 1949; and
Morrison, 1949).
Finally, the fact that the Supreme Court decided Widmar without a
thorough application of the three-pronged Lemon test has not
strengthened the situation for religious groups in their interaction
with government. If the Lemon test is inadequate as a testing ground,
what would the Court substitute for it? Instead, in moving the whole
issue to a different arena. Justice White's comments have some force
in that the religious clauses are emasculated of meaning. The Court
of Appeals, which applied the Lemon criteria to Widmar concluded that
it could pass the Lemon standards. But for good or ill, the Supreme
Court’s Widmar ruling has become the standard governing
student-initiated religious groups on the campuses of public
institutions of higher education. The basis of its decision, however,
may lead to further litigation which will force the Supreme Court to
review the whole gamut of religion and the State, examining critically
the foundations on which the present interpretations rest, a further
examination of the Framer’s intent, the validity of the incorporation
theory, and the continued pressures upon religion from a growing
secularism in the United States.
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CHAPTER IV
WIDMAR; THE DYNAMICS OF COMPLIANCE
We are a religious people whose institutions
presuppose a Supreme Being. We guarantee the
freedom to worship as one chooses. We make room
for as wide a variety of beliefs and creeds as the
spiritual needs of man deem necessary. We sponsor
an attitude on the part of government that shows
no partiality to any one group and that lets each
flourish according to the zeal of its adherents
and the appeal of its dogma. When the state
encourages religious instruction or cooperates
with religious authorities by adjusting the
schedule of public events to sectarian needs, it
follows the best of our traditions. For it then
respects the religious nature of our people and
accommodates the public service to their spiritual
needs.
Justice William 0. Douglas in
Zorach v. Clauson, 1952, p. 313
While Chapter II traced the historical unfolding of the Bill of
Rights and its subsequent interpretations, especially the concept of
incorporation of the Bill of Rights into the Fourteenth Amendment, and
Chapter III examined and analyzed the three hearings of Chess v.
Widmar (sub nomine, Widmar v. Vincent), the purpose of Chapter IV was
to evaluate the implementation of the Widmar decision in the
tripartite system of higher education in the State of California.
With the handing down of the Widmar ruling on December 8, 1981, the
Supreme Court upheld the appellate court’s decision in favor of the
rights of students to meet on a public college campus for religious
purposes.
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On one side of the issue there are those who accept the Widmar
holding as incontrovertible wisdom, almost as if it had been revealed
to the Supreme Court from a burning bush, while on the other side,
there are those who would reject the "burning bush" metaphor outright,
and for reasons quite apart from Widmar, as well as those who possess
a religious faith equal to or more than the Cornerstone students but
who oppose Widmar on separationist grounds.
Then, too, there are those who have no intention of becoming
entrapped in the Widmar controversy on one side or the other, taking
instead a stand in the middle of what seems to them a muddle. Still
others either have not heard of Widmar or are indifferent. But while
one may easily find much to support the two polarized viewpoints, and
even sympathize with the muddled fence-straddling group, the last
group, and especially so if any of them are involved in student
personnel work, represent the target of that old bromide: "What’s the
difference between ignorance and indifference?" "I don’t know and I
don’t care."
Accordingly, in January, 1984, the Survey Questionnaire described
in Chapter I was distributed to the Student Affairs/Student Personnel
Offices on the campuses of the University of California (UC),
California State Universities (CSU), and the California Community
Colleges (CCC). Returns began within two weeks of the mailing, and
data continued to be assembled until May 1985, when it was ascertained
that no further replies could be expected. The following is a report
of the findings. A copy of the Survey is included as Appendix A at
the end of this study.
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Compliance Dynamics: Implementing Widmar
Preliminary Information
There were four areas examined in this part of the survey. The
responses to each of these have been presented in chart form along
with further explanation when clarification appeared necessary.
1. The institution you represent is associated with:
U C_______ C S U _______C C C Total
Number contacted 8 19 106 133
Number responding 7 (87.5%) 10 (53%) 61 (58%) 78 (59%)
2. Student enrollment:
U C_______ C S U _______C C C Total
a. Under 4000 1 0 8 9
b. 4000-8000 1 4 16 21
c. 8000-12000 1 0 13 14
d. Over 12000 4 6 24 34
Total 7 10 61 78
The significance of these numbers is that by even the most
conservative estimate, over 600,000 students were (indirectly)
represented in the returned surveys. While more demographic data on
students would have been interesting, it would not have been
particularly important to this study.
3. Student groups are under the direct oversight of:
U C C S U C C C Total
a. V.P. for Student Afrs I 1 4 6
b. Dean of Students 1 3 18 22
c. Asst/Assoc Dean 0 2 10 12
d. Other 5 4 32 41
7 10 64 81
It is obvious that some of the numbers do not match with those in
the last section. The reason is that some of these were shared
positions with one person working closely with another administrative
officer in the Community College system. These other positions have a
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variety of titles: Student Activities Coordinator, Student Affairs
Officer, Student Affairs Director, Campus Activities Coordinator and
such.
4. Your familiarity with the Widmar v. Vincent case is:
U C_______ C S U ______ C C C Total
a. Very familiar 0 4 2 6
b. Somewhat familiar 6 5 17 28
c. Little familiarity 0 1 18 19
d. No familiarity 1 0 24 25
7 10 61 78
The responses to this item were quite significant. It appears
that the UC and CSU administrators were much more aware of the nature
of the case than were those in the community college system. But the
response from the University of California was just as surprising. It
was anticipated that the greatest knowledge of the case would have
come from that arena because one of the respondents noted the fact
that in conjunction with the Widmar case, the Regents of the
University of California had filed with the Supreme Court an amicus
curiae brief in argument against the University of Missouri position.
That comment came from one of the smaller UC campuses.
Religious Organizations on Campus
Because of the variety of campus interests, it would seem
apparent that there would be a large number of religious interests
represented on the campuses of the State. This proved to be true.
However, the data reflect conditions on campuses only two years after
the Supreme Court decision which may be too short a time to obtain a
clear picture of religious activity which may yet evolve.
This section of the survey was divided into five sections. Some
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of the distinctions for these sections might have been debated if a
strict theological model had been applied, but for the purpose of this
study these designations seemed to be accurate enough to obtain the
data. The data reflected in the following charts were responses to
the section of the survey "RELIGIOUS ORGANIZATIONS ON CAMPUS" (See
Appendix A), The respondent was asked to check those organizations
which had official standing as student religious groups on campus.
The religious organizations were divided into five categories as
reflected in the following summaries. For example, in the category,
"Christian Groups," six UC campuses responding reported Roman Catholic
student groups, five Protestant, six Latter Day Saints, four Christian
Science, three Jehovah’s Witnesses, and one campus reported a group
not among those designated. The data from the other two sources can
be read accordingly.
Christian Groups (Questions 5-10)
U C_______ C S U ______ C C C ______ Total
Total Responses__________7___________10_________61___________78
Organizations reported
Roman Catholic 6 10 16 32
Protestant (Mainline) 5 8 22 35
Latter Day Saints 6 8 32 46
Christian Science 4 6 6 16
Jehovah’s Witnesses 3 0 0 3
Others 1 1 13 15
These figures clearly indicate that the most aggressive Christian
group on the campuses was the Latter Day Saints,— apparently a
reflection of their very active program of "proselytizing" (to use
their term) which is also true outside the realm of academe. The
Mormons are among the most rapidly growing religious groups in the
United States. The figures for other Protestant groups may have been
154
affected by the fact that many who might have been drawn to some one
of their religious groups were those who were attracted by some of the
para-Church groups, and as a result, the number of Protestant
organizations would have been smaller than the actual varieties of
students involved in religious activities. This would have especially
been the case of many evangelicals who would have become affiliated
with organizations such as Intervarsity Christian Fellowship, Campus
Crusade for Christ, or the Navigators.
Jewish Groups (Questions 11-14)
U C C S U C C C Total
Total Responses 7 10 61 78
Organizations reported
Orthodox 2
Conservative 2
Reformed 2
Combination 5
The last of these categories is very significant in that it seems
that in spite of the theological distinctions between Jews, many of
them seem to feel more comfortable in a setting which is less
theological. The combination category included such organizations as
the Hillel Club, Jews for Israel, and one response indicated United
Jewish Appeal. That latter group might be suspect as a religious
group since its emphasis has been more in line with charitable causes.
Para-Church Organizations (Questions 15-18)
U C C S U C C C Total
Total Responses 7 10 61 78
Organizations reported
Campus Crusade 5
Intervarsity 4
Navigators 4
Other 2
21
21
2
6
35
33
10
10
155
The three organizations named in this section have a long
standing ministry to college students. Of these, Intervarsity is the
oldest, but in terms of an aggressive evangelistic type ministry.
Campus Crusade is probably the leader. The Navigators organization,
though evangelistically oriented, appeals more to those already
converted. It emphasizes Bible study and the memorization of
scripture. Intervarsity is generally viewed as the most
intellectually-oriented of the three. Both Intervarsity and Campus
Crusade publish a monthly magazine oriented to the college/university
student, though Intervarsity’s HIS magazine is more problem oriented,
dealing with contemporary social problems (e.g., abortion,
homosexuality) as well as the typical difficulties encountered by
college and university students (dating, studying, life work). As a
campus organization, it emphasizes small group Bible studies,
interaction on contemporary topics and evangelical witness through
both word and life. All three organizations attract students mainly
from Protestant churches though there is no particular thrust in that
direction. The ’’other’’ groups which were listed include some
Pentecostal groups, the Christian Medical Society, and a few ethnic
Christian fellowship groups.
Non Christian Groups (Questions 19-23)
U C C S U C C C Total
Total Responses 7 10 61 78
Organizations reported
Muslim 6
Buddhist 1
Shinto 0
Ba’hai 5
Other 3
0
0
0
11
1
12
4
2
25
5
156
That the totals for those of the Muslim faith are high in the
university system but not in the Community College system is probably
explained in terms of the numbers of international students enrolled
in the universities. The small numbers of Buddhist and Shinto
organizations demonstrate that these are more personal and
philosophical in nature. Too, if the pattern in the United States is
similar to that in the Orient, there is not a great interest in
religion except at birth, marriage and death, events which some wag
designated as "hatching, matching, and dispatching." That the numbers
for Ba’hai were as large as they were was somewhat of a surprise.
However, that group has been gaining more attention because of its
pacifist teaching and its emphasis on the oneness of mankind,
emphasizing unity and brotherhood, not dogma. Included in the number
of non-specified groups were several meditation yoga groups and one
which was designated "Pagan Grove," highly suggestive of a Satanic
cult or a group emphasizing witchcraft.
Eclectic Groups (Questions 24-28)
U C_______ C S U _______ C C C Total
Total Responses_________7___________ 10___________61________ 78
Organizations reported
Unification Church 4 2 0 6
Hara Krishna 1 1 1 3
Ecktanar 4 0 0 4
Scientology 1 0 0 1
Others 0 0 0 0
These results were about as expected. There has been an
aggressive effort on the part of the Unification Church to attract
people in the university setting, and the fact that half of the
reporting campuses of the UC system reported such groups indicates
157
that that effort has been successful. There undoubtedly are some
segments of the group meeting off campus as well. It can be expected
that there will be an increase in student membership if the current
trends continue. Hara Krishna attracts a larger spectrum of people
than university students, and as a result its efforts to win converts
is not as directed toward the academic setting as other groups. That
Ecktanar student organizations appear only on the campuses of the UC
is not unexpected. It is a relatively recent movement, and it
attracts those more interested in a kind of pantheistic ontology.
Regulations regarding Recognized Religious Groups
The third section of the survey was directed at one of the main
questions of the study: What is the nature of the implementation of
the Widmar ruling in the California system of public higher education?
As noted earlier, the Board of Regents for the University of
California had filed an amicus curiae brief in the Widmar case
supporting the position of equal access for student religious groups.
That fact might indicate that the practice of the UC system was one
which had allowed such access prior to Widmar, and therefore would not
represent a major change. In other words, the UC Board of Regents
probably was guarding an already existent practice. If that is true,
then many of the regulations pertaining to religious student groups
were in effect when the Widmar ruling was handed down. Not all of the
questions in this section were answered by the respondents.
Consequently, the totals will vary from the sample group total.
158
29. All student groups have been affected by changes in regu
lations because of Widmar.
Yes No
UC 0 6
CSU 2 6
CCC 5 38
Total 7 (12%) ^3 (88%)
If one were to compare the effect of the Widmar ruling in the
States of California and Missouri, it would be expected that the
results would be quite different. The results for the UC would
indicate that policy toward student religious groups has been a
liberal one. The case in the CSU system would indicate that there was
a certain degree of autonomy either in the prescription of regulations
regarding student religious groups, or, as the legal proceedings in
Widmar indicated, the enforcement of the regulation lagged several
years behind its incorporation. But this appeared even more evident
in the case of the CCC. Those CCC institutions which furnished copies
of their regulations regarding student religious groups demonstrated
that the Widmar holding had not been implemented. This was evident by
the fact that most of the regulations bore a date in the 1970s. Too,
their situation may have been affected by the regulations in many
community colleges that an organization must be sponsored by a
certificated staff member. There seemed to be a fear on the part of
some CCC governing boards that a student religious group meeting that
requirement, might embroil the college in an Establishment Clause
violation.
159
30. Religious groups are given official recognition on this
campus.
Yes No
UC 7 0
CSU 10 0
CCC 49 4
Total 66 (94%) 4 (6%)
In light of the Widmar ruling, it is interesting that four of the
Community Colleges did not give official recognition to religious
groups. However, an oversight in the study perhaps is that there was
not a question relating to recognition of student groups generally.
The Widmar ruling only has force in institutions in which there exists
a policy allowing the use of facilities to all student groups. It may
be that the four schools which report non-recognition do not have a
policy of official recognition for any student groups. If that is the
case, then such colleges are operating within the legal standards for
equal access.
31. Religious groups, though recognized, are in an associative
status on this campus.
Yes_________________ No
UC 1 5
CSU 0 7
CCC 11 31
Total 12 (29%) 43 (71%)
By associative status was meant a status of recognition but not
in the sense of an official recognition. An example of the
distinction is one currently in use at the University of Montana.
There are a number of student groups which meet regularly in
university facilities. At the present time, however, all of the
religious groups maintain centers or meeting places off-campus. They
may and do use campus facilities from time to time. These
160
organizations are considered integral to university life and are
associated with the university as recognized organizations.
Consequently, they may utilize bulletin boards, newspapers and other
media for advertising purposes, but they do not have access to any
funding. UCLA maintains a similar distinction between "sponsored" and
"registered" organizations.
Several responding institutions sent copies of their regulations
regarding student activities. Most of them had similar statements
concerning "registered," "authorized," or "recognized" student groups.
32, Religious student groups are using institutional facili
ties on this campus.
Yes No
UC 7 0
CSU 10 0
CCC 49 5
Total (93%) 5
The uniformity of the university system here suggests a friendly
compliance with the Widmar ruling. In the case of the Community
College system, however, the regulations reflect a pre- Widmar policy.
For example, most of the regulations which were received from the
community colleges were last revised in the 1970s, and in most of
those institutions, the religious student groups were treated
differently than other student organizations. The large number of
responses indicating "no familiarity" with the Widmar ruling appears
to have been confirmed by the regulations.
161
33. Religious groups received funding from student fees or
other institutional resources.
Yes No
UC 2 5
CSU 9 0
CCC 12 38
Total 23 (35%) 43 (65%)
One of the criticisms levelled at the Widmar decision has been in
the area of eligibility for student funding. Howarth and Connell
(1981) recognized this as the thorniest issue in the granting of
official recognition to religious groups:
The ability to obtain university funding for club activities is
often another concomitant of official recognition. Whether there
is an absolute constitutional right to such funding, however, is
unclear. Furthermore, in the case of student religious groups,
the issue of direct financial aid obviously raises serious
establishment issues.
If the university makes funding available to some groups but
denies it to others on the basis of the ideas they express, a
group so denied would appear to have a claim for relief under the
equal protection clause. Similarly, if the university withdraws
previously granted funding solely based on disagreement with some
non-disruptive act or expression of the group, a constitutional
violation is likely to be found.
However, if the university merely chooses to adopt a
non-discriminatory policy of not providing student clubs with
funds for their activities, it is not settled whether a
constitutional violation exists. In other words, the question is
whether funding, like use of campus facilities, is a necessary
element of the right of association in the university context,
(pp. 141-142)
One reporting institution noted that each student group was given
$50,00 to meet expenses for a given semester. That this is a "gray
area" since the decision in Widmar is evident. How the possible
constitutional problems will be handled will be a result of both the
examination of institutional regulations and, probably of greater
significance, the positive actions of the religious groups in refusing
such assistance.
162
34. All student organizations must have a faculty sponsor.
Yes______________No
UC 2 5
CSU 7 3
CCC 55 3
Total 64 (85%) 11 (15%)
Sponsorship seems to be more pertinent to activities in the
secondary school setting than in higher education. In the hearing of
the Widmar case (Chess v. Widmar, 1980) before the U.S. Court of
Appeals, the opinion made special reference to the distinction between
equal access for college students as contrasted with secondary school
pupils :
[H]igh school students necessarily require more supervision than
do young adults of college age and this supervision poses a
greater risk of entangling government authority in religious
issues. Teachers ordinarily assigned to assist and supervise
high school student groups may be thrust into an untenable
position when assigned to supervise a prayer group. Even their
presence in the room may suggest governmental approval of the
religious activities of the group. There is no evidence in the
record before us, however, that Cornerstone or any other student
group at UMKC receives supervision or assistance from any member
of the University’s faculty. (Chess v. Widmar, 1980,
pp. 1319-1320)
The statistics in this question differ from that decision. In
fact, the regulations of one community college has a lengthy section
dealing with the question of advisors and concludes with the
statement: ’ ’REMEMBER: NO CLUB ADVISOR, NO CLUB!’ ’ (Associated Students
of Cerritos College, Club Guide, 1983-84, p. 17)1 Of course, the
significance of this declaration is tempered by the action of the
Supreme Court dealing with the question on the basis of the content of
speech or expression rather than on the questions relating to the two
religious clauses. Also, much would depend upon the definitions
163
assigned to the terms, "supervision" and "assistance."
The responses to this question were particularly interesting in
comparing the two university systems. It could be implied by these
numbers that the CSU system has a policy which desires that student
groups have closer ties to the institution than do their counterparts
in the UC system. Comparing percentages between the two, the UC
system requires faculty sponsorship in 2 of 7 or 28% of reporting
institutions, whereas the CSU system requires it in 7 of 10 or in 70%
of its reporting schools. The very high numbers in the case of the
community colleges is generally in line with the closer ties which the
colleges maintain with the student organizations in that system which
may be traced to a holdover from the K-14 concept.
35. There are some regulations regarding the engagement of
outside speakers for student groups.
Yes______ ______ No
UC 7 0
CSU 8 2
CCC 51 6
Total (89%) 8 (11%)
A number of institutions included a copy of their regulations
regarding student groups. Activities in all institutions were under
the oversight of student affairs or activity officers. Groups which
invited outside speakers generally had a clearance procedure to
follow. Typical of such procedures was the following:
a. A "Request to Sponsor a Student Activity" form must be
approved by the Office of Student Life prior to extend
ing a firm invitation to the speaker to use the campus
facility.
b. This form must be submitted at least 48 hours prior to
164
the anticipated use of the facility. This requirement
may be waived by the Office of Student Life when it is
clear that the deadline cannot be met for reasons be
yond the control of the sponsoring organization,
c. Whenever the Chancellor considers it appropriate and in
the best interest of the educational process, she/he
may require that the meeting be chaired by a person
she/he approves and/or that the speaker be subject to
questions from the audience,
(UCSB policies and campus regulations applying to cam
pus activities, organizations, and students. University
of California, Santa Barbara, Approved August 9, 1979,
p. 19).
36. Religious groups are allowed to solicit in the institu
tional residence halls.
Yes No
UC 0 5
CSU 1 8
CCC 0 0
Total 1 13 (76%)
This question was poorly worded. First, it was essentially
irrelevant to the Community College system in that few of them are
residential schools. Secondly, it did not specify what was to be
solicited. It was assumed that it would be funding, but there were
comments on some of the responses that the question lacked clarity.
Too, the percentages given are given in light of the total university
sample only. However, if most respondents believed the solicitation
to be fund-oriented, then the results would seem to have validity.
37. Religious groups, whether on campus or not, are allowed
the privilege of advertising through various campus media.
Yes No
UC 7 0
CSU 8 2
CCC 41 13
Total 56 (78%) 15
From the information received from respondents, there was little
which was helpful in analyzing the negative responses. All of the
165
material received from the UC system demonstrated current
understanding of the ruling which proceeded from Widmar. The
regulations regarding campus clubs (including religious clubs)
received from the community colleges were based on regulations in
effect before the Widmar decision. Some campus regulations seemingly
had remained unchanged since the early or mid-1970s, indicating that
revision of those regulations needs to be made. In none of the
materials received from the community colleges or California State
University system was there any notation which disallowed advertising
of meetings. The regulations of several campuses did not allow the
hanging or posting of religious posters, but allowed advertising.
Possible Areas of Difficulty
One of the assumptions of the study was that implementation of
the Widmar ruling would result in some difficulties. There were many
supposed areas which were listed. Some of these proved valid while
others did not. The remainder of the questions in the survey involved
anticipated problems,
38. Has there been an increase of requests from religious
groups for administrative recognition?
Yes No
UC 1 6
CSU 3 7
CCC 6 49
Total (14%) 62 (86%)
From data received, it may be perceived that public higher
education in the State of California included provisions for religious
clubs. In some of the material which was dated in the 1970s,
religiously oriented clubs were required to pay for the use of the
166
school facilities. It is expected that this has changed since Widmar.
The results above may infer a number of things. One is that the UC
system practice toward student religious groups has been broader in
some respects than other systems. Regulations which demonstrate this
fact are published in "Policies Applying to Campus Activities,
Organizations, and Students, Part A, Revised July 21, 1978":
Section 32.111 . . . Religious and political campus
organizations shall have access to University properties on the
same basis as all other campus organizations, ....
Section 31.14 On University grounds open to the public
generally, as may be defined in the campus regulations, all
persons may exercise the constitutionally protected rights of
free expression, speech, assembly, worship, . . such activities
shall not interfere with the orderly operation of the campus and
must be conducted in accordance with campus time, place and
manner regulations. (p. 11)
Another comment was that "the full impact of the 'Widmar vs.
Vincent' decision" has not been felt on our campus. The comment
continued: "It will be interesting to see what happens when it does"
(Name withheld, letter on file). It appears that this may be true
throughout the system. The lack of familiarity with the case would
certainly lend evidence that the effect through the 1983 academic year
was slight.
Another reason for this may be found in the student sphere.
There may be ignorance of the ruling, or a group of students may be
hampered by lack of numbers, or in obtaining a faculty sponsor, or are
satisfied with off-campus facilities.
167
39. Does the proliferation of student groups place additional
work load on student affairs personnel?
Yes No
UC 4 3
CSU 1 8
CCC 24 26
Total 29 (44%) 37 (!%%)
One of the comments to a "yes" answer to this question was, "But,
that’s what we’re here for." The positive attitude was noted. The
response implied that, contrary to the report on Question 38, there
has been some increase in student organizations. These may not
reflect any great increase in religious organizations however. What
it may indicate is that there are many more arenas of interest among
students than existed before.
40. Has your institution had to increase personnel in student
affairs primarily to oversee student groups?
Yes No
UC 2 5
CSU 1 9
CCC 3 54
Total 6 (EÜQ 68 (92%)
Though the work load factor had increased, it did not seem to
follow that there had been a marked increase in personnel. This was
significant in that any large increase in personnel would probably
have involved greater expense as well. If this was attributed to a
large increase in student religious groups, there could be some cause
for legal action, especially if it could be demonstrated that such
expenditures were appropriated from tax funding. This did not appear
to be the case.
168
41. Have you been able, thus far, to provide scheduling of
institutional facilities to provide for all requests of
recognized student groups?
Yes No
UC 4 2
CSU 8 2
CCC 52 3
Total 64 (90%) 7 (10%)
The expected impact of Widmar has not materialized in the
California system. Though there were several of the community
colleges which did not respond to this question, the more significant
number was that the University of California had two schools which
have evidently had difficulty. Both schools which answered "no" to
this question were schools with large student populations. One had
over 12,000 students and the other was in the 8000-12000 student
range.
42. Have there been any contentious problems arise between
religious student groups or between religious student
groups and others?
Yes_____________No
UC 3 4
CSU 3 7
CCC 6 51
Total 12 (16%) 62 (84%)
This question did not examine what kinds of religious contentions
have arisen. One respondent noted that its difficulty with religious
groups was between Iranian students. It could be expected that there
would arise some differences in viewpoints between some religious
groups and social advocacy groups or between two religious groups who
espouse different viewpoints on social issues such as abortion. This
should not be a cause for alarm any more than the voicing of
differences in political ideologies would be considered alarming.
169
Also, what the action of the administration should be is largely
dependent upon the local situation and the manner in which the
differences are played out. The question of that which is disruptive
must always be considered.
43. Do you agree with the Widmar ruling?
Yes_____________No
UC 6 0
CSU 8 2
CCC 31 9
Total 45 (80%) 11 (20%)
By the general public, most higher education educators are
perceived as not very religious. More than that, they are often
perceived as being anti-religious. These statistics did not
necessarily prove either of those perceptions wrong.
44. If you do not agree with the Widmar ruling, would you
favor having all religious student groups maintain off-
campus centers (not be given official status)?
Yes No
UC 0 0
CSU 0 5
CCC 2 17
Percentages have not been added to these statistics because they
do not reflect much more than that which was demonstrated in question
43. The majority of administrators in student life seem to agree with
the Court in its decision regarding equal access. The figures in this
question do not match the statistics in the last instance. Some are
non-committal.
107 ^
45, Would you favor having all student organizations maintain
off-campus centers?
Yes No
UC 0 7
CSU 0 10
CCC 3 49
Total 3 (4^^ 66 (96%)
In light of the Widmar ruling, this would be an option if an
institution were ambivalent about the recognition of student religious
groups on campus. However, in spite of the fact that 10 community
college respondents did not answer this question, the large majority
believed that centers on campus were in the best interests of the
students. Both university systems, being more involved with resident
students, would be expected to favor this. Off-campus centers would
be impractical for many university students. On the other hand, the
commuter-type institutions would have little problem with many of the
groups meeting off campus, and indeed many of them do.
46. Would you favor off-campus centers for religious groups
only?
Yes No
UC 3 4
CSU 2 8
CCC 5 48
Total 10 (14%) 60 (86%)
This question in concert with the last three provided further
evidence that there is strong support on the campuses for religious
groups. It also demonstrated that in the UC system there is not as
much support for the Widmar ruling on the campuses as there was with
the action of the Board of Regents. The CSU affiliated schools seemed
quite supportive of religious groups and the strongest support for
religious groups on campus was among the community college
171
administrators. In further explanation of the answers by the UC
adminstrators, one of them who answered "yes" on this question further
clarified the answer:
My basic feeling is that the more resources & facilities
available for any student group, the better. My response should
not be construed as meaning that religious groups should be
relegated to being confined to off-campus centers, but that we
have such a center & it’s a positive element/force, (Name
withheld, quotation on file)
47. Do you believe that until the 20th century, there was a
clearer separation of church and state than there is now?
Yes No
UC 0 6
CSU 1 8
CCC 23 24
Total (38%) (62%)
Familiarity with the Court's decisions on religion and education
cases which have been announced since Everson might lead one to guess
that Justices Black, Rutledge, Frankfurter and Douglas were attempting
to move the pattern of judicial-religious relationships back to the
Jefferson-Madison era. Such a concept did not seem to be the pattern
among the university administrators. However, it was interesting how
the statistic was skewed by the inclusion of the community colleges.
There was no direct evidence to explain this, but one could conjecture
that the community colleges were much closer to secondary school
boards in educational philosophy where religious issues have been more
visible in those school systems than in the university system. There
may be more administrators in the community college system who have
been "burnt" by the religious issues.
172
48. Do you believe that the Widmar decision will bring about a
plethora of religious student organizations?
Yes No
UC 1 6
CSU 0 10
CCC 5 41
Total 6 (10%) 57 (90%)
Time will tell whether there will be a significant increase in
religious organizations on campuses. Even if there is, it may not be
directly traced to the Widmar ruling. One administrator stated that
shifts in societal values explained increases more than the Court’s
decision and that the timing of Widmar was coincidental to those
shifts (Name withheld, opinion on file). It is clear that most
administrators do not foresee any great increase.
The use of the term ’’plethora’ ’ was double-edged in this question.
It has pertinence to a fulness or excess, but it is also negative in
connotation, meaning ’’an unhealthy excess.’’ The concept of meaning
might have some effect on the responses, but irrespective of one’s
concept of the term, the results would generally be the same.
49. Have you experienced an increase in the number of reli
gious organizations since the Widmar decision?
Yes_____________No
UC 1 6
CSU 2 8
CCC 6 42
Total 9 (14%) 56 (86%)
It may be too early to forecast accurately the effect of Widmar
upon the campuses. Much of its effect may not be felt until there is
general knowledge of the decision. It is questionable whether the
actions of the Court were closely followed by the student population,
and since the ruling specifically pertained to ’ ’student initiated’’
173
religious groups, some of them may be the last to discover its
significance. How widely dispersed knowledge of the decision has been
can only be guessed. Most of the journals associated with the
evangelical churches in the United States have had numerous articles
regarding the decision and its meaning in terms of future decisions in
secondary and primary schools, but there are probably few students who
read those journals. The Widmar case, however, was well publicized in
groups associated with the Moral Majority, and those associated with
that movement have been active in promoting among their college-age
students the significance of the ruling. The organization which did
much of the spadework for Widmar, the Christian Legal Society, has
also been actively involved in disseminating the record of the Court's
decision. The effect on college students from churches influenced by
these sources might be greater than the effect on other groups,
Christian or otherwise, who are not so effectively organized or
indoctrinated.
50 . Have you encountered major difficulties in complying with
the Widmar decision?
Yes_____________No
UC 0 7
CSU 0 10
CCC 0 49
Total 0 66 (100%)
The fact that none of the reporting institutions has encountered
difficulties in its compliance with the Widmar decision appears to
indicate that the colleges and universities reporting have either not
allowed religious organizations on campus or that their regulations
pertaining to such organizations are so well-stated that "off-beat"
174
groups featuring bizarre beliefs leading to disruptive behavior would
not be able to meet the requirements for registration as recognized
student activity groups. It is obvious from the statistical
information that religious organizations have been allowed campus
access, so the answer must lie in the regulatory realm.
A Synopsis and Analysis of Campus Regulations
University of California
The campuses of the University of California are directed
basically by a document titled. University of California Policies
Applying to Campus Activities, Organizations, and Students. It is
popularly referred to as "Systemwide Policies." The individual
campuses of the UC system follow these and adapt them as needed for
the peculiar situation of a given campus. The regulations, however,
are coded the same way for each campus, and the regulations are
generally the same. Only those which specifically refer to religious
student groups are included in this study. For purposes of brevity,
any cited references to these regulations will be as follows;
1. Policies, (Revised October 29, 1972)
2. Policies, (Revised July 21, 1978)
3. UCSB Policies, (Approved August 9, 1979)
4. Activity Guidelines, UCLA, (1981)
5. Berkeley Campus Regs, (1983)
6. Policies, UC, Santa Cruz, (1983)
32.00 CAMPUS REGULATIONS
32.111 As a state instrumentality, the University must remain
neutral on religious and political matters. The Uni-
175
versity cannot sponsor or fund religious activities,
. . . except when authorized by The Regents or the
president or their designees. Religious . , . organi
zations shall have access to University properties on
the same basis as all other campus organizations, ac
cording to the guidelines set forth in campus regu
lations.
32.1111 [Rjeligious organizations may be registered by the Uni
versity and may sponsor . . . religious programs/events
by fulfilling registration requirements and by follow
ing applicable time, place, and manner regulations,
provided that such programs are produced/sustained at
no cost to the University.
32.1113 An organization is defined as "religious" if it meets
one or more of the following criteria:
a. the organization describes itself as "religious";
b. the organization is affiliated with a group gener
ally recognized as a religious organization;
c. a purpose of the organization is worship, devo
tion, or prayer;
d. a criterion for membership is membership in or
affiliation with a group generally recognized as
a religious sect; or
e. the purpose of the organization is to bring to
gether persons professing a belief in God or other
belief encompassing theories of man's nature or
place in the universe and occupying a place in
members' lives comparable to recognized religion.
The guiding principle that will be used in determin
ing whether or not a group is to be classified as
"religious will be to ascertain if the organization's
practices, tenets, mode of meeting, or use of litera
ture are comparable to an organized religion.
(Policies, UC, Santa Cruz, (1983), p. 6).
There seemed to be some differences on campuses as to what a
"registered" campus organization is. At both the Berkeley and Los
Angeles campuses, there is a distinction between "registered" and
"sponsored." A "registered student organization is composed of a
group of students who organize "to become involved in a common
176
activity and who are registered with the Office of Student Activities
and Services for the purpose of using campus facilities" (Berkeley
Campus Regs, 1983, p. 5). A sponsored organization is a "registered
student group whose purposes and practices further the University's
function as an educational institution and are consistent with
University policy" (Berkeley Campus Regs, 1983, p. 5). UCLA refers to
these two categories as "independent," identical to the "registered
student organization" at Berkeley, and "affiliated," which is
identical to the "sponsored" category on the Berkeley campus
(Activity Guidelines, UCLA, 1981, p. 10). Only "sponsored" or
"affiliated" organizations at these schools receive funding and are
allowed to use the name of the university in correspondence,
advertising, and the like.
Since Widmar involves equal access, it is noteworthy that the
regulations of the UC system have seemingly changed. In UCSB Policies
(1979), the following regulation regarding religious (and political)
use of facilities was in use:
While political and religious groups will have access to
University facilities on the same basis as other registered
groups (on an occasional basis), whenever fund-raising, a space
assignment or more-than-incidental use of University resources is
involved, these groups will be responsible for paying the
pre-established rates that cover the total cost of the program or
activity and certain administrative/overhead charges. . . . This
assures that the University is in no way sponsoring or
subsidizing political or religious activity on the campus.
(p. 13)
No more recent copy of the regulations in force at UCSB was
received, so one of two conclusions may be assumed. The first is that
the same policy is still in force. The other is that the policy
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regarding payment for assignment of space is no longer in the
regulations. Such a policy is absent from the Berkeley Campus Regs
(1983).
In all the UC regulations, the grounds of the campuses have been
open to free expression of all kinds, including worship services.
California State University
Very little material was received from the CSU affiliated
schools. There were no copies of regulations, though it is assumed
that the regulations would be similar to those of the UC system. One
respondent sent copies of forms which related to "Chartering a Student
Organization." Whether this is the term which is used in all of the
CSU affiliated institutions is not known. The cover page for the
forms has information related to (1) reasons for chartering a student
organization, (2) required forms, and (3) the chartering process. Of
these, the first and third are relevant to this study:
REASONS FOR CHARTERINC A STUDENT ORCANIZATION:
^ University recognition
^ Use of campus facilities and Media Resource Center equip
ment including audio-visual
Approval to hold fund raising events
Representation in the Associated Students
Opportunity to apply for certain kinds of Associated
Students funding, i.e. loans and event co-sponsorships
Consulting services of the SRC staff, especially in the
area of program planning and implementation
^ Associated Students insurance coverage for most campus
activities
THE CHARTERING PROCESS
All required documents must be filed with the Student
Resource Center where they will be checked and then
submitted to a review committee. You will be notified prior
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to the committee meeting. A club representative must be
present at this meeting for the charter to be approved.
After your organization is officially recognized you will be
mailed a formal Charter document. Student Organization
Charters expire in August and must be renewed by the end of
September annually.
Failure to renew your charter will result in the need for
your organization to repeat the entire process from the
beginning.
There have been changes since the Widmar ruling. Comments on the
survey tool noted this fact. For example, one response noted:
Before Widmar there was a campus rule against religious services
on campus grounds— did not especially hit clubs but also those
who wanted to marry on campus & off-campus religious
organizations who want to use the facilities. After Widmar our
Newman Club has a regular mass on campus but we have experienced
very few other requests. It certainly has not increased work
load for activities. It simplified monitoring the evangelical
Christian clubs who previously could pray, sing hymns, but not
have a service. The line is gray & fuzzy & sometimes the
explanations & questions were lengthy as to why they couldn’t and
if they couldn’t do this— what about this? (No name, form on
file)
If this would be a typical response, then it seems that Widmar,
in broadening the regulations has necessitated less workload because
there no longer is a reason to monitor. Monitoring in itself presents
a problem of excessive entanglement. A comment on another form noted
that "proselytizing cannot be listed in the group’s constitution as a
purpose of the organization or as a condition for membership" (No
name, form on file).
California Community Colleges
Copies of regulations relating to student campus organizations
were received from 12 institutions in the CCC system. Of these, four
did not indicate the date of the last revision, and of the remaining
nine, eight were utilizing regulations which had been instituted in
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nine, eight were utilizing regulations which had been instituted in
the 1970s. One institution’s regulations were those which had last
been revised in 1971. That it did not conform to the Widmar ruling
was evidenced by the statement regarding religious clubs: ’’ Religious
clubs may not use the campus for any proselyting, religious
indoctrination, or conducting worshipful services. In general, campus
religious clubs should complement, not substitute for, off-campus
churches’ ’ (Administrative Guide Policies Relating to Students,
Community College District, North Orange County, 1971, p. 5). The
single question which would be raised by Widmar with this policy would
be the statement regarding content-based exclusion. Those from the
ASB of Long Beach City College (1978) included a list of six
prohibited activities among which were ’’ witnessing,’ ’ ’ ’proselytizing,’ ’
’’preaching, ’ ’ and ’ ’devotional meetings’’ (p. 2), all of which might be
similarly challenged by the Widmar ruling. Similar policies were true
of most of the other regulations which had not been revised in light
of the Widmar decision (see, e.g.. Golden West College, 1979; Los
Angeles Valley College, 1973; Memorandum dated November 7, 1972 from
Branch County Counsel Office to the President of Los Angeles Valley
College; Community College District, North Orange County, 1977).
A staff advisor was required by every institution which submitted
regulations. This is a reflection of Item 34 in the Survey in which
55 CCC institutions reported that this was required. Only three
institutions stated that there was no such requirement on their
campus, and three CCC schools did not respond. In most cases, the
acquisition of a staff/faculty sponsor was a requirement for
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chartering a campus club.
The Club Guide published by the Associated Students of Cerritos
College was the most up-to-date set of policies. Interestingly, it
did not single out religious clubs with any specific set of policies
which differed from those of any other student organization. The same
was true of Crafton Hills College (San Bernardino Community College
District), Southwestern College, the San Diego Community College
District and Merced College. The only one of these last mentioned
schools which had a date attached was that of the San Diego Community
College District (1978).
As noted earlier, in most of the CCC schools, prior approval was
necessary for the engagement of outside speakers. This was reflected
in the regulations which were reviewed. The typical procedure to
follow in this was noted earlier in this chapter (see responses to
Item 35).
Funding for the clubs differed. In some cases, any recognized
organization or club could apply for some funding through the
associated students’ funds, but these could be added to by
fund-raising projects and club dues. Projects were also restricted as
to number per year (usually one per semester). In most cases, the
fund received by the clubs had to be deposited with a responsible
institutional depository, and withdrawal of those funds was carefully
controlled.
In conclusion, the scene on the campuses of CCC institutions
seemed to be much more controlled in terras of regulatory policies, and
some outdated and therebv questionable regulations which
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were certainly content-based exclusions, there was no noticeable
singling out of religious organizations for some special rules. It
was assumed that many of the regulations which were content-based
exclusions have since been amended in light of the Widmar ruling.
What was stated in the regulations reviewed was confirmed by the
appropriate items in the survey instrument.
Concluding Observations
The tripartite system of higher education in California is not
marked by sameness in the sense of student religious organizations.
To be sure, there are similarities, but the data indicated that there
were distinct differences as well. For example, while most of the
campuses reported rather uniform numbers of mainline or familiar
Christian, Jewish, and para-church groups, the more esoteric
religious groups were a phenomenon peculiar to the UC campuses and to
a lesser degree to the CSU schools. As noted in the comments on the
questions, some of this could be attributed to the greater numbers of
international students in the university systems. But it also
indicated that there probably was more interest in the aberrant groups
on the part of the more sophisticated university students. Though
there were no data relevant to this study on the wide reading or wide
range of interests peculiar in each of the systems, it could certainly
be assumed that the university students represent a wider degree of
sophistication if for no other reason than that they are students in
four year schools. Too, it may be the spirit of the age, for as
Harold O.J. Brown (1984) observed: "Today heresy and orthodoxy have
changed roles. It is fashionable, not dangerous, to be a heretic, and
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dull if not unsafe to be orthodox" (p. 8). If his observation is
correct and is pertinent to society in general, one should expect that
such would be even more true in the university setting.
Second, it was noted that there was a difference in the
compliance with Widmar in the three systems. The UC was the most
progressive system, their regulations for the most part being
anticipatory to the Widmar ruling. The familiarity with the ruling
was greater in the UC system though there seemed to be a failure to
communicate the reasons for the policy to those in the lower level of
administering the student activities programs. The CSU system seemed
to move in conjunction with the ruling, but the CCC schools lagged
behind. It appeared clear that the reasons for this were basically
related to ignorance regarding the ruling, and it was further assumed
that this might be attributed to the close ties which the CCC schools
have maintained with the public school systems organizationally and
philosophically (the K-14 model).
A third observation related to an expected increase in the number
of religious groups applying for and being granted institutional
recognition. The data to this point have not demonstrated this to
have happened. The most obvious reason for this would be the short
duration of time between the Court’s judgment and the implementation
of the ruling within the academic community. However, the fact that
the UC system was already following what was to become the law of the
land, and that their reports did not indicate great changes brought
about by the liberalization policy, would indicate that the decision
has not greatly affected the campuses. There is another reason for
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this as well. Since the ruling applies to "student-initiated" groups,
the fact that many serious students are quite busy with studies might
preclude their involvement in new undertakings. Some of the most
active religious students are the evangelicals, and they have had
organizations which met their needs for a longer time than others
(Intervarsity Christian Fellowship, Campus Crusade for Christ,
Navigators, as well as varied denominational student ministries).
Though some jurists have argued from time to time that
accommodation of the kind represented by Widmar would result in strife
between groups, this is not the problem which was particularly in mind
in Chief Justice Burger’s warning. And even if it were, the short
history of religious groups on campus since Widmar would not lend any
credence to that claim. The fact that no survey indicated any
problems on campus would indicate that administrators have failed to
note such strife. Insofar as the student segment is concerned, such a
climate on campus may indicate that students are tolerant, apathetic
or pluralistic. But there was no instrument to measure student
response in the data assembled. Yet it should be observed that in
spite of the variety of differences in religious viewpoints expressed
in contemporary American society, few of them have led to the radical
actions of "Know-nothings" of the last century in the United States or
of the KKK in its lawlessness. In fact, even the rhetoric of some
contemporary rabble-rousers (e. g., Farrakhand) have not yet resulted
in flagrant acts to carry out those opinions. In other words, the
mentality of most of the citizenry of the United States is one of
healthy pluralism. Confrontation by religious groups toward other
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religious groups has been more rhetorical than actual in American
society, and there appear no reasons to believe that will change
radically in the foreseeable future.
The one great problem in Widmar appeared related more to funding.
However, if student groups are funded in part through student fees but
not at all through institutional resources, it is difficult to see how
an effective case could be triggered as a First Amendment violation.
Though the institution bears some custodial responsibility for the
funds, they are in reality the resources of the students, and as such,
could be dispensed for all recognized student organizations. However,
if the institution should ever become involved in support of student
religious groups in more than an indirect way, that is, budget from
appropriated funds the assistance to student religious groups, that
seemingly would be in violation.
It appears significant that most student activities
administrators were favorable toward the Widmar decision, thus
pointing out that there is a spirit of accommodation on the part of
those administering higher education in California. Whether this
spirit of accommodation is a recognition of the part religion can play
in the development of morale and integrity, whether it is strictly a
matter of the secularistic pluralism which allows religious views to
compete, or a simple matter of obeying the law were conclusions for
which the study did not provide conclusions.
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CHAPTER V
RETROSPECT AND PROSPECT
Believing as I do that constitutional law like its
matrix, intellectual history, must adjust itself
to the subtle gradations of past and present
reality, I deny the obligation to permit either
the dogmatism of latter day religiousity or the
simplistics of a Jeffersonian metaphor to govern
the analysis of fact and need. The complexities
of history deserve our respect,
M. D. Howe, 1965, pp. 175-176
In the design of this study as stated in Chapter I, the themes
which were developed were those of the American drift toward secu
larism, a movement which is not revolutionary but evolutionary, and
the modern rush toward legalism— the rapid growth of the litigious
nature of the American citizenry. Certainly, the religious issues of
the day are not the singular aspects involved in this twin set of
dynamics, but it is close to center. This is demonstrated whether one
is considering the educational issues such as prayer, moments of
silence, equal access, indirect support of religious institutions or
the social matters of the day which center in such controversies as
abortion, euthanasia, or the "rights" issues, whether feminine, civil,
or animal. The first of these themes— that of secularism— was
dominant even in the work of the framers of our nation’s Constitution,
and the evolution of that drift was traced in Chapter II which
delineated the development of First Amendment interpretation up to the
present. Chapter III dealt with that development as it affected
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religious groups who desired to gather for expression of their
religious convictions on a public university campus, and who, through
the legal process, were able to gain that right not only for
themselves but for all such student religious groups on the campuses
of public institutions of higher education in the United States. The
direction of Chapter IV was to explore the implementation of that
decision, Widmar v. Vincent (1981) in the context of the tripartite
system of public higher education in the State of California. Chapter
V attempted to bring the varied elements of the study into a focus on
the reality of the Widmar decision together with recommendations for
an efficient implementation of its principles. It is to be hoped that
such implementation will relieve what is considered by some a paranoia
regarding the establishment of religion and will vitalize the free
expression of religious convictions, presenting them in the campus
forum as contenders in "the_marketplace of ideas." This reflects the
very principles which Jefferson and Madison articulated. To do
otherwise is to use the "cop-out" of honoring the First Amendment— "by
pleading the Fifth" (Huidekoper, p. 17).
Summary of the Study
Review of the Literature
Reflecting upon constitutional issues is a valuable exercise for
administrators in education. Since the Supreme Court began its great
involvement with educational matters, (a phenomenon which largely
belongs to the last half of the twentieth century) the need for
perusal of legal decisions pertaining to education has been
imperative. Some institutions have created new staff positions for
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specialists in this field, and it might be that the wave of the future
will bring even more expansion.
A part of the genius of America is found in its diversity of
opinion. There is probably no more visible arena for such diversity
than the law courts of the nation. But even the most carefully
crafted decisions become fodder for those who are in disagreement.
Much of the periodical literature which Widmar fostered is lauded or
scorned, but little of the literature written in this area of religion
and education can be dismissed as unimportant. It is clear that the
Court has been guided at various times by a strict Jeffersonian
interpretation of the First Amendment, at others by an interpretation
which is one of accommodation. In spite of the fine arguments in
support of strict neutrality offered by Professor Kurland (1962), few
cases were settled on that basis (see, however, Sherbert v. Verner,
1963). As Millington (1979) noted, "the approach that has been
adopted by the Court has been one of ’accommodating neutrality’" (p.
268) .
To debate any issue, it is imperative that the debaters begin
their argumentation from the same place. This may be the same base in
terms of subject matter, or in this case, the Constitution. What do
the religious clauses mean? How does one arrive at an understanding
of what they mean? The justices of the Supreme Court in most
instances have argued from a historical perspective. This seems
sensible, but history is rarely kind enough to present one with an
infallible case. Nevertheless, it is a valid starting place.
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Historical Context
Chapter II presentated the historical background of the First and
Fourteenth Amendments to the Federal Constitution. An appeal to
history often brings an embellishment on the historical incident that
does not sharpen its accuracy, though it provides more color. But
justices are no more infallible than other mortals, and they often
bring to their decisions preconceptions of what is desired. Justice
Cardozo (1925) recognized this over a half century ago as he quoted
the French jurist, Saleilles, "One wills at the beginning the result;
one finds the principles afterward; such is the genesis of all
juridical construction" (p. 170).
But in contending from a historical basis, there is at least some
objective material on which the debate can be continued. This is the
nature of the meaning of these two religious clauses. They cannot be
placed in the concrete of a Jeffersonian rhetoric, eloquent though it
might be. Nor can it be made to conform to the ideology of one who
was in the vanguard of its construction, for Madison himself saw these
same matters a little differently than did Jefferson. Thus it would
be erroneous to see both of these men as ideological twins. Jefferson
was the thorough idealist believing in the perfectibility of man.
Madison also embodied the Enlightenment ideas, but he was not so
trusting in the nature of man. So to attach the words of one or two
individuals as the historical meaning of a text is to ignore thousands
of other words of congressmen, state legislators, newspaper reporters
and citizens as to what those words meant. As was noted in the study,
Madison himself agreed that it was not what one or two said but what
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was understood by the majority in deciding the meaning of the
document.
The "wall of separation" was shown to be a term used by Roger
Williams even before Jefferson used it in his letter to the Danbury
Baptists. But to Williams, the wall was to keep the government out of
religion, fearing its intrusion would bring persecution and a return
to the establishments which had forced him and his followers into
Rhode Island. His fear was government; Jefferson's seemed to be
religion. One has to remember that Jefferson lived in a state in
which the establishment of religion was such a persistent problem that
he devoted much of his energy and writing to its demise. Though
Jefferson attended the Anglican church when he did go to church, his
theological thinking was divorced from the tenets of that sect or any
other Christian group. As a Deist, he had few places in which he
might find an agreement between his theology and that being preached
from the pulpits of Virginia. But he hardly shut religion out of the
life of academe. Though he discouraged the teaching of theology in
the University of Virginia, Jefferson encouraged various sects to
erect schools adjacent to the University.
The fact that establishments continued demonstrated the fact that
the First Amendment was not understood in terms of the abolition of
establishments, at least by the action of Congress. By the time that
the First Amendment was considered to have been incorporated into the
Fourteenth, all of the established religions had disappeared in the
states. Consequently, if the original intent of the First Amendment
was to prevent any religious system from gaining dominance in the
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nation, that same prohibition would be incumbent presently upon the
states.
It seems imperative, then, to a correct understanding of the
First Amendment that one return to a consideration of the problem
which the amendment was designed to correct. Admittedly, it was
establishment, but not a State establishment. Too, the meaning hinges
on what is an establishment, a problem supposedly answered by Justice
Black in Everson, (1947). But as Jones (1980) argued:
The Everson case approached three distinct, debatable issues but
accepted them all as established, integrated facts: (1) that
Madison was the sole author of the first amendment, and
therefore, it is justifiable to examine his writings in order to
ascertain the true meaning of the establishment clause; (2) that
the establishment clause of the first amendment was incorporated
into the fourteenth amendment, and (3) that Jefferson’s ’’ wall of
separation between church and state’’ metaphor provides
justification for the Court’s modern interpretation of the
establishment clause, (p. 685)
In Engel v. Vitale (1962), moreover. Black cited Madison’s
Memorial and Remonstrance five times in his opinion. But it is
significant, observed Van Patten (1983), that ’’he does observe that
the Memorial and Remonstrance ends with a prayer. . . .It may be that
the real issue is the religious freedom to pray. Madison’s
Remonstrance ought not to be read as foreclosing this freedom’’ (p.
24).
It is just as important to consider the historical context of the
Fourteenth Amendment. This study analyzed the historical conditioning
of that amendment in both Justice Black’s and Professors Fairman and
Morrison’s interpretations. It is the conclusion of this
investigation that Professors Fairman and Morrison have presented the
191
most historically cogent argument against the incorporation theory;
therefore, the unqualified acceptance of unproven historical
precedents, as in Black’s arguments, are not the marks of careful
scholarship and are certainly subject to strong suspicion, in spite of
the concept of justice which some proponents believe the Court’s
decisions accomplished. There is always a subjective element in
decision-making whether it relates to the Courts or any other
enterprise. Accordingly, Justice Cardozo’s (1925) observation is well
worth considering:
I have spoken of the forces of which judges avowedly avail to
shape the form and content of their judgments. Even these forces
are seldom fully in consciousness. They lie so near the surface,
however, that their existence and influence are not likely to be
disclaimed. . . . Deep below consciousness are other forces, the
likes and the dislikes, the predilections and the prejudices, the
complex of instincts and emotions and habits and convictions,
which make the man, whether he be litigant or judge. (p. 167)
The whole purpose of the War Amendments was to guarantee the
rights of citizenship to the freed blacks. The arguments which were
waged over the meaning of ’’privileges and immunities’’ have been traced
in the study. It seemed justified to conclude that there was a
specific purpose for which these amendments were adopted, and to
launch out too great a distance from that purpose makes the wording of
those documents specious.
Legal Precedent
Is the application of the Fourteenth Amendment therefore to be
deemed wrong in all First Amendment cases? The answer to that
question is obviously, no, not at all. When such cases involve state
action restricting the rights enunciated in the First Amendment, the
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application is sound, but the first religious clause is not in the
language of a right. It has nothing to do with the depriviation of
life, liberty or property. This is one of the sticky problems in
attempts to load every religious expression in public education with
the establishment burden. The First Amendment was just not aimed at
such issues.
However, out of the judicial decisions came the three-pronged
Lemon test which it was hoped would determine the question of whether
or not an establishment issue was involved. First, the statute in
question must have a secular legislative purpose; second, its
principal or primary effect must be one that neither advances nor
inhibits religion; and third, the statute must not promote an
excessive entanglement with religion (emphasis added to denote basic
concepts in the tests).
As applied to Widmar, the U.S. Court of Appeals agreed with the
U. S. District Court finding that the first and third prongs were
clearly satisfied in allowing the Cornerstone group to meet on campus.
It was with the second prong that the two courts found themselves
opposed. The Appellate court, questioning whether there was really an
advancement of religion involved in such an accommodation, declared
that there was a clear inhibition of religion in the action of the
University. Thus there was not so much a question of establishment as
there was one of the free exercise of religion, clearly a "right"
protected by both the First and Fourteenth amendments.
The question of free exercise seemingly has created its own
problems. The courts have often stated that both religious clauses
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should be considered equally, but the decisions have shown that such a
principle is little more than a fond hope. The reason is that the two
clauses were designed to protect different situations, and only the
second is clearly an individual right which could be considered under
the umbrella of the Fourteenth Amendment. Both of the clauses are
absolute statements which brings to mind the cautioning of Murray
(1949): "One cannot balance an absolute against anything" (p. 33).
The landmark case for free exercise was Wisconsin v. Yoder
(1972). Though it did not have any direct bearing on Widmar, the
principle that the free exercise clause in the right circumstances
might be considered as preeminent to other claims (such as an
overriding state interest in compulsory education) was extended to
state interests in establishment claims. The second prong of the
Lemon criteria is closely akin to the principle of free exercise and
the Appellate court made its decision on that basis. But the matter
of free exercise was not the only argument for Cornerstone in Widmar.
The freedom of expression protected as well by the First
Amendment was introduced in the first hearing of the case in the
district court. The argument was largely ignored by that court, and
though referred to, it was not the basis of the decision by the U.S.
Court of Appeals, However, it was this principle which the Supreme
Court latched onto in its subsequent decision. Linked with the free
speech right is the doctrine of a public forum, which holds "that if
the state provides any activity, it must do so on a content-free
basis. That is, the state may not discriminate on the basis of the
content of the first amendment activity in allocating the use of its
194
facilities. Only time, place, and manner restrictions are
permissible” (Newell, 1982, pp. 27-28).
Thus, Widmar really is more than an establishment issue. In
light of the previous decisions of the Court, it is at least that, but
it involves four other issues: (1) free exercise, (2) free speech or
expression, (3) right of association or assembly, and (4) the public
forum doctrine. Giannella (1968) long before Widmar declared that
when there is a "confrontation between the establishment and the free
speech clauses of the first amendment, the latter must prevail” (p.
585). And as Anderson (1981) noted:
When, however, one side to the controversy can legitimately
assert three separate constitutional rights vis-a-vis the other
side's one, that group of constitutional rights may appropriately
be given primacy over the single constitutional right. The
students' rights of free speech, freedom of association, and the
free exercise of religion outweigh the university's interest in
nonestablishment. For that reason, student religious groups
should be allowed to worship in their campus buildings, (p. Ill)
What was established then is that religious speech is speech, and
though there have been attempts to isolate religious speech from other
kinds of speech, such a distinction is not one which will be
recognized by the Court. As Marshall (1983) succinctly stated the
principle: ”[I]f in Widmar there had been no right of access to
university buildings for groups engaging in nonreligious speech, there
would have been no right of access for those engaging in religious
speech" (p. 560).
Societal Values Influencing Widmar
The decisions of the Court are the products of a number of
influences. Certainly the influence of stare decisis is important and
195
recognized, but there are others which are just as influential. The
personalities of the justices themselves cannot be overlooked. Every
justice comes to the Court with certain biases. If this were not
true, the label of Liberal, Moderate, or Conservative could hardly be
applied to any of them. The labels are rarely completely accurate,
but there is a truth to them just as there would be to the label.
Activist, used by many to describe the Warren Court. Justice Cardozo,
as the study has shown, noted the subjectivity of the members of the
Court. The justices themselves, as members of particular social
groups bring the consciousness of those groups with them to the bench.
The new surge in religious conservatism has brought pressures
upon society which inevitably reach the Court. Silent for many years,
and often ignored, the religious conservatives are conspicuous for
their activism in many social issues including the judicial. For
example, a former Nixon aide, Charles Colson, is active in work with
prisoners in the correction centers of the nation. Others are active
in the pro-life movement, and the Christian Legal Society, made up of
attorneys as well as a lay membership, is active in many facets of
legal work including reconciliation of marriages. In the January,
1985, edition of Eternity, a nondenominatina1 monthly journal of the
evangelical wing of Christianity, over 30 professional organizations
within the evangelical or conservative movement are listed. Many of
these are active in legislative matters involving education (Creation
Research Society), sociology (Christian Sociological Society), only to
name two (Resources, pp. 38-39). Because of the increased voice which
the religious conservative has, there are renewed pressures on the
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courts to render decisions which demonstrate that there is equal
protection under the law even for the zealous evangelical. As
Campbell (1982) noted:
One cannot help but wonder, if in light of the emerging
conservatism of the nation, the Widmar Court supported (but did
not articulate) the proposition that public policy now dictates
that religious groups be given at least equal access with
"radical” student groups to the use of public university
facilities, (p. 510)
Some have suggested that secularism is also a formidable
influence in the most recent decisions of the Court. The term
’secularism’ is often a contentless word, a fact which led Berger
(1967) to quip that the term has had "a somewhat adventurous history"
(p. 106). To some, secularism is a system which does away with any
distinction between the sacred and the secular, a system which blends
them into one. An example which some cite is that of ancient Judaism
as portrayed in Torah, a system which embraced all of life into one as
being under Yahweh. To Torah was added the oral tradition as embodied
in various Judaica such as Mishnah and the Talmud. Seemingly, every
facet of life was dealt with. The portrait of such a life is not
unlike that so well portrayed in "Fiddler on the Roof." Everything
had a religious connotation.
One of the most cogent studies of secularism is that of Peter
Berger. In his work. The Sacred Canopy (1967), he defined the term/s,
"secularism," "secularization" and their cognates as "the process by
which sectors of society and culture are removed from the domination
of religious institutions and symbols" (p. 107). Thus Berger would
not adopt either model of Judaism presented above. In a
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well-developed thesis, he posits the idea that both Judaism and early
Protestantism have had a well-defined distinction between the sacred
and secular in that both had a certain "disenchantment with the world"
(p. 121), a dichotomy which is not readily observed in the Roman
Catholic and Greek Catholic branches of Christianity.
But secularization has its price. Too often the high religious
ideals become lost in the mundane, and the society is religious in
form only. This is what is believed as happening in the United States
today even among the evangelicals who have followed the road travelled
earlier by the adherents of the social gospel. Berger (1967) observed
that "[t]he social formation of the Christian church served the
process of secularization" (p. 123). But it is not just an interest
in social issues which portrays a secularistic spirit. Concern with
social action was a part of the New Testament teaching of Jesus
Christ. Rather, the secularism evident in the churches of the United
States is a phenomenon not evident in countries with established
churches. Berger (1967) further argued that the nonestablishment
principle which led to pluralism is that which in turn produced a
secularism in the religious sector of American life. In language
which is strongly suggestive of the words of the Court, he noted:
The key characteristic of all pluralistic situations, whatever
the detail of their historical background, is that the religious
exmonopolies can no longer take for granted the allegiance of
their client populations. Allegiance is voluntary and thus, by
definition, less than certain. As a result, the religious
tradition, which previously could be authoritatively imposed, now
has to be marketed. It must be "sold" to a clientele that is no
longer constrained ro "buy." The pluralistic situation is, above
all, a market situation. In it, the religious institutions
become marketing agencies and the religious traditions become
consumer commodities, (p. 132)
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During the early rise of the social gospel, especially under the
influence of Walter Rauschenbusch and his successors, a biblical
vocabulary with terms such as redemption, healing, presence, as well
as a host of others continued to be used in the churches, but these
were redefined in terms of social consciousness, thus obscuring the
biblical content which formerly they bore. Because of such
redefining, many of the dogmatic differences between Protestant
denominations became fuzzy and in contemporary society it is not
uncommon, for example, for a Methodist to make a membership change to
a Presbyterian church, totally oblivious of the original theological
differences which marked them in the early life of the nation. Rapid
growth in the groups which comprise the religious minorities may be
the result of either the doctrinal vacuum left in main-line
Protestantism or of the playing down of theological issues.
The evangelicals, all but silent on social issues for many
decades, believing that their principal task was the conversion of
people, now are known for their outspoken views on social issues such
as abortion, nuclear disarmament or the feminist movement. And it is
evident that they are in the business of "marketing" their product.
The "electronic church" as some have dubbed the TV personalities, now
vie for an audience which in turn helps in the "extension" of their
unique ministries. The Evangelicals have been at the vanguard of the
varied religious battles waged in the field of secular education, so
it is not surprising that their viewpoints result in pressures brought
upon the courts. Nor is this a bad thing. If Berger (1967) is
1991
correct, and there is little evidence in contemporary life to dispute
his thesis, then the Evangelicals are in the business of competing
with religious and non-religious rivals "in the business of defining
the world" (p. 136).
The courts have brought some strange alliances within the
religious realm as well. There are two which have received national
attention in the last few years. The first involves the recent action
against Dr. Moon in which he was accused and convicted of several
crimes related to taxes. The National Association of Evangelicals, a
lobbying agency in Washington D.C., was on record in support of Moon’s
position. The second alliance involved a number of Evangelicals, who
supported Herbert Armstrong and the Worldwide Church of God in their
battle with the government over the finances of the organization.
This they did in spite of strong theological opposition to the dogmas
of the group.
What this does demonstrate is that the "wall of separation" is
not in place either in the idealistic concept of Roger Williams (no
government in religion) or of Thomas Jefferson (no religion in
government). Recognizing the realities of life should lead to a study
of the checks and balances which would provide protection from the
damaging effects of either kind of intrusion. Though it may be argued
that there has been intrusion, the term is perjorative and too
strident for what has actually gone on. Rather, there has
historically been an accommodative spirit toward religion on the part
of the government. And that government has accepted at times the same
sort of accommodation of governmental regulations. It is to be hoped
200
that such a spirit will continue. However, to state that the Court's
current decisions on religious matters are demonstrative of a growing
secularism forces a clearer definition of secularism than that used by
many spokespersons. Thus with the admission of pluralism, the varied
views must be allowed to compete. Otherwise, the risky experiment of
American democracy is really shown to be a sham and pluralism only
allowed to exist in governmentally-preferred situations.
In summary, the present decisions of the Court are the results,
first, of the mind-sets of the justices who serve there; second, of
the cases which form the precedents for matters under consideration;
and lastly, of the values prevalent in the society of the country,
whether these are influenced by religion, political opinions, or a
pervading sociological phenomenon dubbed secularism.
The Survey and the Interviews
The Survey. Chapter IV presented an analysis of the survey
results. The most disconcerting finding was the disparity of
implementation of the Widmar ruling in the community colleges. In the
discussion of the materials furnished, it was noted that many of them
were using regulations which were not reflective of the Widmar ruling,
some even charging religious clubs for the use of the facilities.
This seemed to stem from the high degree of unfamiliarity with the
ruling. The survey also revealed that little difficulty has been
encountered in the implementation of the decision. There has been no
significant increase in the number of organizations, nor have the
institutions encountered difficulties with relation to meeting places,
finances, or any competitive type of proselytization on campus. For
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the present, the Widmar decision has had little effect on the
California campuses. Another significant point was the great number
of administrators who stated their agreement with the decision.
Administrative interviews. Interviews were conducted with two
administrators, one not associated with higher education in California
and the other a chancellor of a community college in California. The
following questions provided the basis of the interviews:
1. Are you familiar with the "equal-access" law upheld by the
Supreme Court in the Widmar decision of 1981?
2. What is the status of religious clubs on your campus?
3. Do all student organizations have equal-access rights in the
use of institutional facilities on your campus?
4. Are religious organizations provided any funding from student
or other fees?
5. Has the Widmar ruling resulted in an increase in the number of
religious organizations requesting official recognition?
6. Have you encountered any difficulties with religious
organizations on campus?
7. Are you in agreement with the equal-access law?
For the most part, the responses of the community college
administrator were in line with the consensus of the California
schools. He was familiar with the decision and stated that his
institution had been open to religious groups even before the Widmar
decision was announced. Consequently, there was little noticable
difference in the status of religious organizations as a result of the
Court’s action. All student organizations had the same rights both
20:
before and after the decision. No special charges were made of
student religious groups before the decision; rather, such recognized
groups received a stipend from student fees which was provided for all
student organizations. It was a small amount ($50.00 for each
organization for the year). Because the status of student religious
groups had not changed on that campus because of Widmar, no difficulty
was experienced. The comment was made that clubs were incidental to
the life of the school because it was a commuter-type institution.
The other administrator was a Vice-president of Student Affairs
at an out-of-state university. Asked the same questions, his
responses were similar in some ways but quite different in others.
For example, he too was familiar with the Widmar decision ; in fact,
Gary Widmar, the Dean of Students at UMKC, was a friend of his.
Though that particular campus was open to student groups, to this
point student religious organizations have opted to use off-campus
facilities for most of their gatherings. Situated near the campus are
several religious centers which embrace a variety of religious
persuasions. However, all such groups which are involved in some kind
of campus ministry with students must register with the Office of
Student Affairs. Furthermore, there is no ban on non-student
religious groups coming on campus to meet with students as long as
they obtain permission to do so. In addition, many local churches
conduct recruiting efforts of varied kinds to attract students to
their meetings.
He further noted that he felt that the Widmar decision was in
keeping with the historic role religion has had in the United States
203
and that Widmar had not emasculated the Establishment Clause.
Student and Religious Staff Interviews. The students and staff
members interviewed were associated with religious organizations on
campuses in California and out-of-state. They were asked to respond
to the following questions:
1. Are you familiar with the Supreme Court's decision regarding
equal access for student religious groups on public university and
college campuses?
2. Is the organization of which you are a member or in which you
minister officially recognized as a student organization?
3. Does your organization regularly utilize campus facilities?
4. Do you receive any funding from student or institutional
sources for your organization?
5. Is there any coordination of religious groups on your campus
other than merely listing them as officially recognized?
6. Have you encountered any problems from the administration in
the operation of your organization?
Again, the California students and staff workers confirmed the
data adduced from the Survey Questionnaire. It appears that the
administrations of the California colleges and universities, for the
most part, have been much more liberal or broader in their
interpretation of the Establishment Clause of the First Amendment,
opting rather for greater protection of the Free Exercise provision.
Aside from some data reflecting minor discriminatory actions on the
part of some of the community colleges (a fact which the data
supported), none of those interviewed had encountered any antipathy
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and in fact, such things as charges for use of facilities had been
dropped. Out of seven respondents questioned, however, only two (both
staff workers) were cognizant of the equal access law. This too may
reflect the openness of the campuses in California prior to Widmar.
Of the seven, all of whom were from different campuses, only three
noted that regular formal meetings were held on campus, though in the
case of both Intervarsity and Campus Crusade for Christ, small group
Bible studies were conducted on a weekly basis on campus.
The most significant statements made by one of the staff workers
(with Intervarsity Christian Fellowship at a California State
University Campus) related to the close ties in association by most of
the religious groups who actively supported a religious council
directed by the Student Affairs Office. He felt that this was
important in that any religious group desiring official recognition
had to meet with that council which in essence was the official
accrediting agency for religious clubs.
No one reported any difficulty from administrative officials in
the operation of their organizations. Three said that they did not
feel that the administration was enthusiastic about what they were
doing, but they were not "hassled" in any way. Two noted no
particular response from administrative sources, but two others stated
that they felt strong administrative encouragement (not endorsement)
for all student organizations.
The pressures of time and distance did not allow for further
interviews. Obviously, these were much more time consuming than that
involved in the distribution of a questionnaire, but for the most part
203
the responses from this source seemed more valid.
Findings of the Study
It was ascertained early in the study that matters relating to
First Amendment issues are neither quickly researched nor did the
study yield simple solutions. The First Amendment is a superbly
styled series of statements, but the meaning of those statements
continues to provide a challenge to the legal profession, to educators
and to students of the Constitution generally. But there are some
guidelines which seem to provide some fixed stars for direction.
First Amendment issues are firmly established in a historical
context and that context must be understood as a prerequisite to a
determination of the meaning of particular clauses. In other words,
the religious clauses must be interpreted in light of the thinking of
the Framers, the social conditions of the period of creation, the
understanding of their words by the State legislatures which ratified
them, and the subsequent opinions of the Court which delineated their
meaning. To use Jefferson's metaphor as having come from the mountain
amidst the smoke and fire and to have been inscribed on stone tablets
is claiming too much for it. Certainly it was Mr. Jefferson's
interpretation of the meaning of the Establishment Clause, but as was
noted, Roger Williams also used the metaphor even before Jefferson.
But in so far as it is possible to ascertain, it was never used by any
of the Framers as an interpretation of the relationship of Church with
State. The most certain thing which can be said about the
Establishment Clause is that it was written to prevent a national
church or to preclude any denominational advantage over others in so
206
far as the federal government was concerned.
As was noted, the Framers themselves represented a wide spectrum
of religious viewpoints and the results of their labors must be seen
as a compromise with which all of them could live. Though Madison
wished to bind the states to certain proscriptions through the Bill of
Rights, his wishes were denied in the Senate, and it was not until the
Civil War Amendments, particularly the Fourteenth and only then in its
interpretation by the Court in the 1940s that Madison's guarantees of
religious liberty to the states was realized, though one has to wonder
how Madison would have viewed some of the decisions.
In moving into the latter half of the twentieth century, it was
as if actors were waiting in the wings to suddenly appear and bring to
light all kinds of religious issues. Whereas the two religious
clauses had been understood in terms of the Judaeo-Christian heritage,
new directions were brought into the drama. The actors no longer were
stereotypical of the American heritage but represented new concepts
which were to challenge the old. New concepts of religion were
developed by the courts, and it was not long before the religious
clauses were used to protect adherents of religion and nonreligion
alike, thus further muddying the waters of what was religious and what
was not.
Further complicating the scene was a distinction which the Court
had made in Reynolds v. United States (1878) between belief and
action. That decision (suspect now as a case of religious
persecution), was notable in that the Court decided that while it
could not control belief, it could prescribe what was acceptable or
— 1
207
unacceptable in the acting out of those beliefs. More recent cases,
however, have somewhat negated that rather absolutist stance (see,
e.g., Cantwell v. Connecticut, 1940; Sherbert v. Verner, 1963).
Basic to the understanding of the religious cases since Everson
v. Board of Education (1947) has been the concept of incorporation
which was articulated especially by Justices Black and Rutledge in
various cases. This concept was first announced as a part of the
decision in Cantwell v. Connecticut (1940), but was developed by
Rutledge and Black in Adamson v. California (1947) and Everson v.
Board of Education (1947).
Religious issues obviously had become much more complex. New
questions were being posed; What was an establishment violation?
Does the Court take a strict stand that any assistance given in any
way to religious causes thereby create an establishment? If a strict
stand is taken regarding establishment, how is free-exercise of
religion to be balanced? Obviously, some standards needed to be
effected as guides. The Court developed the three-pronged Lemon test
to deal with Establishment issues while to Free Exercise issues would
be applied the twin tests of sincerity of belief and the least
obtrusive means tests.
However, by the time that Widmar v. Vincent (1981) came onto the
scene, the three-pronged Lemon test, though continuing to be utilized
nevertheless did not yield the satisfactory results which had been
envisioned. For instance, the arguments over what was a secular
purpose or whether or not a particular issue had the primary effect of
advancing or inhibiting religion were often more subjective than
208
objective. Furthermore, it was difficult to assess just when the
government had reached the point of excessive entanglement.
Similarly, the two tests to be applied to Free Exercise were just as
diffucult to analyze. The Court had already set precedents in such
cases as Cantwell by removing it from a religious decision to one in
the area of freedom of expression. Thus it was not a complete
surprise that the Court deal with Widmar in much the same fashion.
This was not to say that had the case been decided by application of
the Lemon standards the results would have been different. The U.S.
Court of Appeals in overturning the decision of the lower court did
deal with the religious issues in its decision, Chess v. Widmar
(1980), and though some would not have agreed with the outcome, it was
evident that the opinion nevertheless evidenced thoughtful
consideration of the issues involved.
Too, in spite of the predictions of the dire consequences which
would come as a result of the decision, seemingly these have just not
materialized. The concept of the warring specters of religious
factions as used by the courts fom time to time have little substance
in the pluralism of American life. One can generate greater battles
in these days over political or social issues than over religious
ones, a point which may demonstrate a weakness in contemporary
religion. Yet there is little attempt to silence the voices involved
in those dialogues. The decision in Widmar was a landmark one not in
terms of clarifying the difficulties of reconciling the two religious
clauses but rather in the sense of establishing the discussion of
religious viewpoints as a legitimate enterprise in the university
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forum, the "marketplace of ideas." From the historical evidence,
Thomas Jefferson would be pleased with such a decision. One of his
contemporaries, G. E. Lessing (1729-1781) stated well what Jefferson
and others also articulated:
If God were to hold out enclosed in His right hand all truth, and
in His left hand just the active search for Truth, though with
the condition that 1 should ever err therein, and should say to
me: Choose! 1 should humbly take His left hand and say: Father!
Give me this one; absolute Truth belongs to Thee alone. (The
Oxford Dictionary of Quotations, 1979, p. 314)
Conclusions
1. The Widmar decision has the potential of bringing a positive
force into higher education. The first reason for this conclusion is
that the public college or university is the marketplace of ideas.
Religious ideas are not isolated into some esoteric dimension. One of
the principal ideas in a religious system is that of the ontological,
the study of being. That such a subject is a study in psychology and
philosophy does not rob it of its religious content. To hold, as do
those of the Judaeo-Christian framework, man as having been formed in
the image and likeness of God, believers should be directed into a
careful study of their concepts in light of aberrant concepts such as
those which identify man with all of life in a pantheistic sense.
That religious groups are allowed to meet on campus might generate
greater and more meaningful discussion of such topics in their
meetings as well as at appropriate times in the classroom.
Another foundational religious concept is that of cosmology, the
study of the orderliness of the universe. Meetings on campus attract
more students than those espousing only one viewpoint. This was one
210
of the reasons the Cornerstone group felt discriminated against, and
it was apparent that their exile from the campus resulted in a
dramatic reduction in attendance. It is a normal occurrence in many
meetings to discuss such topics.
There are certainly social and theological issues which are
important to be aired on campus. The most seething social issues of
contemporary society have theological implications. The campus is one
of the best places in which such issues can be explored. Probably the
only way in which such issues will be explored by other than
sympathetic adherents will be in the atmosphere of an open campus
meeting.
And there is a positive force to people of similar interests
holding worship services on campus. As has been noted, this is
especially vital to the residential campuses. Allowance for the
varied groups to use the facilities cannot be considered an
establishment issue in that the accommodation is not a major
governmental one, that is, it is neither mandated nor sponsored by the
institution.
2. Widmar has not at this point created a monster. Dire
predictions about the prodigious growth of religious groups has not
materialized. Neither have the problems of scheduling, the claim to
student funds or other gloomy predictions. Perhaps it is too early to
reach such a conclusion, but the fact that the students who could
initiate and motivate such organizations are often students who have
come to the university to get an education precludes the use of their
energies in the organization of new clubs. Instead there is a
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continuing support of organizations which were involved with campus
ministries before Widmar. All Widmar did was to open the campus to
these organizations if they were excluded on the wrong basis before.
3. Widmar does not represent an emasculation of the
establishment clause. As Ayres (1981), the attorney for the
University of Missouri, commented:
One of the most interesting aspects of this case, and one which
must be considered as pivotal in the Court’s ultimate decision,
is the majority’s characterization of the activities under
scrutiny as "religious speech." In so doing, the Court, in my
opinion, has either intentionally, or unwittingly, gutted the
Establishment Clause, (p. 514)
If this were the first such pronouncement sounding the death
knell of the establishment clause, it might be more plausible. The
handling of the establishment issue by the U.S. Court of Appeals
seemed to adequately deal with that question. The problem with Ayres,
Black, Rutledge and others is that they made an extension of the
establishment clause which ignored the right of free exercise. As has
been argued, the first religious clause is not framed in the language
of a right— it basically is a fortress protecting the citizenry from
an established religion, be it Roman Catholic, Jewish, Moslem,
Protestant, Gnostic or any other. It has nothing to do with the
rights of groups to meet in the facilities of public buildings. It
was noted that Jefferson allowed religious worship in the buildings of
the University of Virginia. If the three-pronged Lemon test is
applied to establishment claims, and if the arguments for the second
of the tests considers equally the primary effect as neither advancing
nor inhibiting religion, then the decisions of the Court in future
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establishment issues should be just ones.
4. The Widmar decision marks a return to the action of balancing
the two religious clauses and marks the present Court as one which
identifies the relationship between Church and State as one of
accommodation. This seems to be more in line with the historical
roots of the country. It should be noted again that the Northwest
Ordinance of 1787 stated "Religion, morality and knowledge, being
necessary to good government and the happiness of mankind, schools and
the means of education shall forever be encouraged." Such "walls" as
were proposed and imposed during the sixties seem to lack the sanction
of good historical observation.
5. Widmar has had and will continue to have an influence in
legislation which pertains to education and religion. Since the
Court’s Widmar ruling in 1981, the question of equal access for
secondary students has been debated in the lower courts. But in the
98th Congress, the question was settled by the bills introduced in the
Senate by Senator Hatfield and in the House by Congressman Bonker.
After lengthy debate and some interesting attempts at blocking the
legislation, it passed both houses and, for the present, is law. No
doubt there will be challenges to the legislation in that the position
of the Court has consistently been one of non-application of many
higher education liberties to secondary education. However,
regulations related to secondary schools have continued to evolve
toward greater liberty for the students in the realm of expression,
and such challenges to the Congressional action of 1984 will probably
be decided in some way favorable to equal access for student-initiated
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clubs on the high school campuses. Olson (1982) predicted:
If the decision is narrowly interpreted to apply only when a
student-group forum is created by a policy of access to
facilities and only when a state university is involved, then
this decision will have limited impact on future cases. If,
however, this decision is broadly interpreted to apply to public
secondary schools where students wish to use the facilities to
conduct religious activities and worship, then this decision will
have widespread effect simply because of the greater number of
secondary schools. ( p. 189)
Too, the influence of the Widmar decision is important to any
discussion of pluralism in American society. For better or worse,
that, together with secularism, is the conceptual base of American
public education, and as such, any idea has a right to be marketed,
and this is especially true of those ideas which pertain to the basics
of life itself— human origins, human purposes and human destiny.
Recommendations
The suggested recommendations are divided into three groupings.
The first will pertain to student activity personnel; the second to
the institutions of higher education; and the third to the religious
groups on the campus.
Regarding student personnel. It is realized that most student
activity offices are heavily burdened with the varied minutiae of busy
student life. But it seems incumbent upon those with whom the
responsibilities of authorization, scheduling, activity funding and
approval of non-institutional speakers, should give more attention to
the "privileges and immunities" (to use a well-known ambiguity) which
Widmar guarantees. It was evident from the response by the community
college personnel that more study should be given to the ruling as it
pertains to religious groups and the varied problems which might arise
214
relating to other constitutional issues. For example, would the
allotment of certain funding from student activity fees be considered
some kind of an establishment and thus promote some kind of legal
action against the institution. Another question which should be
thoroughly understood is the status of the student organization in its
relation to the institution. Does the law view the student
organization as a "person" in the same way as it does the university?
If it does, then the student organization is subject to legal action
under 28 U.S.C.j>1343 (1976).
Regarding the institution. The protection of the institution
from legal claims has been a matter of growing concern since the
decade of the sixties. The Widmar decision has not lessened such
concerns. Therefore, the college or university can assist in the
implementation of the ruling in a way which will be in keeping with
the law and will result in the best provision for the religious life
of the student.
1. The first recommendation to the institution would be to define
the kinds of organizations which are allowed on campus. A model of
this is found in the regulations of the University of California
pertaining to campus organizations (Regulations Implementing
Systemwide Policies Applying to Campus Activities, Organizations, and
Students, University of California, Berkeley Campus 10/83). It
should be noted that these policies are systemwide. The particular
item to which attention should be given is distinction between a
"sponsored" organization and a "registered organization," All
sponsored organizations are registered, but not all registered
215
organizations are sponsored. The statements pertaining to this are
clear.
Student organizations may be registered or sponsored for campus
activity. A registered student organization shall be defined as
a group of students who organized to become involved in a common
activity and who are registered with the Office of Student
Activities and Services for the purpose of using campus
facilities. A sponsored student organization shall be defined as
a registered student group whose purposes and practices further
the University’s function as an educational institution and are
consistent with University policy. Such groups are registered
with and approved by the Office of Student Activities and
Services and are authorized to use the Berkeley campus name,
campus facilities, and certain administrative resources. (p. 5,
emphasis added)
Though the regulations might be interpreted to mean that only
sponsored groups may use the campus facilities, this is not the case.
The regulations also provide for the use of the facilities by
registered campus organizations ’’for events related to purposes of the
organization’’ (p. 8).
To distinguish between kinds of organizations allows the
university to establish certain parameters for the protection of the
institutions such as the use of the institutional name. It was noted
in the survey results that there was no such uniformity in the
community college sector. Emulation of the UC policy would be of
great assistance in clarifying the particular privileges alloted to
sponsored or merely registered groups. The sponsored group must be
one which is clearly aligned with the goals and purposes of the
institution, a requirement not placed upon the registered groups.
2. Employ personnel who, if not initially aware of the pertinence
of Widmar to student activities, will become knowledgeable of the
ruling and its raison d’etre. It is highly recommended that all
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three decisions with regard to the ruling be read. Discussion of the
dissents would provide good interaction in the understanding of the
rule if it is accompanied by input concerning the pluralistic role of
American public education.
3. Support off-campus centers. There are some religious groups
who have preferred to remain off-campus. This is in keeping with the
spirit of Jefferson to establish such centers adjacent to the campus.
In the case of many of these, such groups are and should be accorded
the same privileges of on-campus groups if they meet the criteria
established by the university. The use of advertising media available
to other student groups should be available as well to them.
4. Provide clearly stated institutional policies regarding:
a. the use of the college or university name. The UC Berkeley
regulations allow the use of terms such as "campus" or Berkeley
Campus" for registered student groups, but they are not allowed to use
the official title of the school or the names of campus facilities in
their titles (see pp. 7-8).
b. the use of funding assistance. This may be the most
crucial problem for student religious organizations. It is
questionable as to whether some minimal aid would run afoul of
constitutional requirements, but clear statements relating to such aid
would provide protection for the institution against triggering some
Fourteenth Amendment action.
c. the scheduling of speakers from off-campus and the use of
the institutional facilities. It is imperative the college or
university be made aware of visitors on the campus. Such a policy
217
would not be to allow the university some kind of prior restraint on
the meeting. This could not meet constitutional requirements unless
it could be shown that a "clear and present danger" would result. It
is for the optimum scheduling of the facilities and an awareness of
who officially is visiting the campus.
d. the inclusion of disclaimers of school promotion and/or
sponsorship without listing the groups which are sanctioned.
e. an advisor of the organization. If it is to be a faculty
member, it seems wise to allot the responsibility of finding a
suitable advisor. The policy of some of the California schools is
simply, "No faculty sponsor, no institutional recognition."
f. fund-raising policies. Most schools have stated policies,
and it would be prudent for those with rather ambiguous statements to
clean them up and specify what are permitted means of fund-raising.
For example, if a particular institution has residence halls, a
statement of policy regarding the solicitation of funds from residents
should be clearly stated.
g. the use of campus media for advertising. Most campuses
abound in bulletin boards, and the requirements for the posting of
notices on these should be clearly stated and such statements should
be presented to registered campus groups upon their approval as such.
5. It is highly recommended that there be organized a central
coordination committee which has oversight of the student religious
organizations. The members of this committee need not be staff
members of the student activities division. Rather, they should be
representative of the varied kinds of organizations represented in the
218
religious makeup of the institution. One of the officers from each
registered organization should be allowed participation in the setting
of such policies for campus organizations as would be incumbent on
each group. The committee could be directed by someone from the
student activities office and thus the line of communication could be
established.
6. Require an organizational constitution of every registered
student group. This will be discussed in the next section.
Regarding student-initiated religious groups. Students can do
more to assist their cause than may be required by the institution.
There is a certain tenuity to the renewed privileges granted to
student religious groups. The recommendations regarding their
responsibilities are few but important.
1. Establish an organizational constitution and file it with the
office of student activities. Whether or not this is an institutional
requirement, it does denote good faith on the part of the student
organization, and it gives specificity to the purposes and objectives
of the group. It also designates the means of continuity and
responsibility within the group.
2. The raison d’etre for any campus group must be identified in
some way with the larger purpose of the institution. It may be as
simply stated as that of marketing ideas, (a valid exercise in light
of the judiciary) or it might be more complex if one uses the
statement of John Henry Newman quoted in the decision of the Appellate
Court (See Chess v. Widmar, 1980, p. 1319).
3. A policy of the student religious groups should be one of
219
’^cooperation without compromise." This maxim has served the members
of the military chaplaincy well throughout the history of the country.
This is also a policy which is concomitant with a pluralistic society.
It also provides a recognition of the rights of others to believe this
or that or not to believe at all.
4. The student religious groups should become aware of the
constiutional questions and decisions which affect their existence. A
part of the group’s activities should include at least an overview of
the history of religious freedom in the United States, Such a study
will provide a sense of heritage as well as encourage the students to
exercise their constitutional rights with a wariness which alerts them
to "a first experiment on their liberties."
Postscript
Religious freedom is a precious heritage. There are many ways in
which that heritage can be dulled and even eliminated. Those who
confess its importance are its guardians. They may be assisted by
others who understand the implications of freedom, but the believer
remains the primary soldier who stands guard over the citadel of
religious freedom. Not always will the religious devotee find an ally
in an unbeliever. The great philosopher and educator Mieklejohn
(1949) was an exception:
My own beliefs are definitely on the side of nonreligion. So far
as I can see, human purposes have no extra-human backing. Yet,
so long as half our people, more or less, are interpreting and
conducting their lives, their family relationships, the
upbringing of their children upon a basis of some religious
belief, the Constitution requires of us that those beliefs shall
be given not only equal status but also positive status in the
public planning of education. The freedom of religion has the
same basic justification as has the freedom of speech or of the
220
press. In both sets of cases, a strong and passionate private
desire is involved. But far deeper than this is a public
necessity. When men are trying to be self-governing, no other
single factor of their experience is more important to them than
the freedom of their religion or of their nonreligion. The
interpreting of our spiritual beliefs is a public enterprise of
the highest order. (p. 67)
221
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Table of Cases
Abington School District v. Schempp, 374 U. S. 203 (1963).
Abrams v. United States, 250 U.S. 616 (1919).
Adamson v. California, 332 U.S. 46 (1947).
Anthony v. Syracuse University, 231 N.Y.S. 435 (NY App. Div. 1928).
Baer v. City of Bend, 292 P.2d 134 (OR S. Ct. 1956).
Baldwin v. Missouri, 281 U.S. 586 (1930).
Barnett v. Rodgers, 410 F.2d 995 (D.C. Cir. 1969).
Barr v. United Methodist Church, 153 Cal. Rptr. 322 (CA Ct. App. 4th
Dist. 1979).
Barron v. The Mayor and City Council of Baltimore, 7 Peters 243
(1833).
Bluett V. Board of Trustees of University of Illinois, 134 N.E. 2d
635 (IL Sup. Ct. 1956).
Board of Education v. Allen, 392 U.S. 236 (1968).
Board of Education v. Barnette, 319 U.S. 624 (1943).
Bob Jones University v. United States, 461 U.S. 574 (1982).
Braunfeld v. Brown, 366 U.S. 599 (1960).
Butchers' Benevolent Association of New Orleans v. The Crescent City
Live Stock Landing and Slaughter-House Company, 83 U.S. 36
(1872).
Cantwell v. Connecticut, 310 U.S. 296 (1940).
Chess v. Widmar, 480 F. Supp. 907 (1979).
Chess V. Widmar, 635 F.2d 1310 (8th Cir., 1980).
Cleveland v. United States, 329 U.S. 14 (1946).
Committee for Public Education and Religious Liberty v. Regan, 444
U.S. 646 (1980).
Committee for Public Education and Religious Liberty v. Nyquist,
413 U.S. 756 (1973).
239
Corfield v. Coryell, 6 Fed. Case 546, No. 3230 (C.C.E.D. Fa. 1823).
Christian Echoes National Ministry v. United States, 635 F.2d 849
(D.C. Cir 1972), cert, denied, 404 U.S. 561 (1972).
Davis V. Beason, 133 U.S. 333 (1890).
Diffenderfer v. Central Baptist Church of Miami, Florida, 404 U.S.
412 (1972).
Dittman v. Western Washington University, No. C79-1189V (W.D. Washing
ton, Feb. 27, 1980). Appeal docketed. No. 80-3120 (9th Cir.,
April 7, 1980.
Dixon V. Alabama State Board of Education, 186 F. Supp. 945 (D.C. AL.
1960), rev’d, 294 F.2d 150 (5th Cir. 1961), cert, denied, 368
930 U.S. 930 (1961).
Donnelly v. Lynch, 525 F. Supp. 1150 (D.R.I. 1981), aff’d, 691 F.2d
1029 (1st Cir. 1982), cert, granted, 103 S. Ct. 1766 (1983),
rev’d, 104 S. Ct. 1355 (1984).
Earley v. DiCenso, 403 U.S. 602 (1971).
Engle V. Vitale, 370 U.S. 421 (1962).
Epperson v. Arkansas, 393 U.S. 97 (1968).
Everson v. Board of Education, 330 U.S. 1 (1947).
Fellowship of Humanity v. County of Alameda, 315 P.2d 394 (CA Ct. App.
1957).
Founding Church of Scientology v. United States, 435 U.S. 925 (1978).
Fowler v. Rhode Island, 345 U.S. 67 (1953).
Grayned v. City of Rockford, 408 U.S. 104 (1972).
Hamilton v. Regents of University of California, 293 U.S. 245 (1934).
Healy v. James, 408 U.S. 169 (1972).
Heffron v. International Society for Krishna Consciousness, 101 S. Ct.
2559 (1981)
Jacobson v. Massachusetts, 197 U.S. 11 (1905).
Johnson v. Huntington Beach Union High School District, 68 Ca. App.
3d 137 Cal. Rptr. 43, cert, denied, 434 U.S. 877 (1977).
240
Jost V. United States, 347 U.S. 901 (1955).
Katz V. Superior Court, 141 Cal. Rptr. 234 (CA Ct. App. 1977).
Keegan v. University of Delaware, 349 A.2d 14 (Del. 1975), cert.
denied, 424 U.S. 934, reh. denied, 425 U.S. 945 (1976).
Kennedy v. Meacham, 540 F.2d 1057 (10th Cir. 1976).
Keyishian v. Board of Regents, 385 U.S. 589 (1967).
Kunz v. New York, 340 U.S. 290 (1951).
Lemon v. Kurtzman, 403 U.S. 602 (1971).
Lynch v. Donnelly, 104 S. Ct. 1355 (1984).
McCollum V. Board of Education, 333 U.S. 203 (1948).
McDaniel v. Paty, 435 U.S. 618 (1978).
McGowan v. Maryland, 366 U.S. 420 (1961).
Marsh v. Chambers, 103 S. Ct. 3330 (1983).
Maxwell v. Dow, 176 U.S. 581 (1900).
Meek v. Pittenger, 421 U.S. 349 (1975),
Minersville School District v. Gobitus, 310 U.S. 586 (1940).
Murray v. Curlett, 374 U.S. 203 (1963).
National Labor Relations Board v. Catholic Bishop of Chicago, 440 U.S.
490 (1979).
National Labor Relations Board v. Baptist Hospital, 442 U.S. 773
(1979).
Niemotko v. Maryland, 340 U.S. 268 (1951).
O’Hair v. Andrus, 613 F.2d 931 (D.C. Cir. 1979).
Ohio V. Whisner, 351 N.E. 2d 750 (OH S. Ct. 1976).
Palko V. Connecticut, 302 U.S. 319 (1937).
Palmer v. Central School District, 469 F.2d 623 (2d Cir. 1972).
People V. Collins, 78 Cal. Rptr. 151 (CA Ct. App. 3d Dist. 1969).
241
People V, Mullins, 123 Cal, Rptr. 201 (CA Ct. App. 1st Dist. 1975).
People V. Woody, 40 Cal. Rptr. 69 (Ct. App. 1964).
People V. Woody, 78 Cal. Rptr. 69 (CA Sup. Ct. 1964).
Permoli v. First Municipality of New Orleans, 3 How. 589 (1844).
Pierce v. Society of Sisters of the Holy Names of Jesus and Mary,
268 U.S. 510 (1925).
Pillar of Fire v. Denver Urban Renewal Authority, 509 P.2d 1250
(CO S. Ct. 1974).
Police Department of the City of Chicago v. Mosley, 408 U.S. 92
(1972).
Poulos V. New Hampshire, 345 U.S. 395 (1953).
Prince v. Massachusetts, 197 U.S. 11 (1944).
Reynolds v. United States, 98 U.S. 145 (1878).
Roe V. Wade, 410 U.S. 113 (1973).
Roemer v. Board of Public Works of Maryland, 426 U.S. 736 (1976),
Russo V. Central School District, 469 F.2d 623 (2d Cir. 1972).
St. Martin Evangelical Lutheran Church v. South Dakota, 451 U.S. 772
(1980).
Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208
(1974).
Schneider v. State, 308 U.S. 147 (1939).
Scopes V. Tennessee, 289 S.W. 363 (TN S. Ct. 1927).
Serbian Eastern Orthodox Diocese for the United States and Canada v.
Milivojevich, 426 U.S. 696 (1976).
Sherbert v. Werner, 374 U.S. 398 (1963).
Solid Rock Foundation v. Ohio State University, 466 F. Supp. 600
(N.D. IL 1979), aff'd, 603 F.2d. 1271 (7th Cir.), cert, denied,
100 S. Ct. 689 (1979).
Stacy V. Williams, 306 F. Supp. 963 (N.D. Miss. 1969).
State ex rel. Holcomb v. Armstrong, 239 P.2d 545 (WA S. Ct. 1952).
242
State ex rel. Swann v. Pack, 527 S.W. 2d 99 (TN S. Ct. 1975),
cert. denied, 424 U.S. 954 (1976).
Stone V. Graham, 449 U.S. 39 (1980),
Streeter v. Brogan, 274 A.2d. 312 (NJ Sup. Ct. 1971).
Student Coalition for Gay Rights v. Austin Peay State University,
477 F. Supp. 1267 (M.D. Tenn. 1979).
Sweezy v, New Hampshire, 354 U.S. 234 (1957).
Thomas v. Review Board of Indiana Employment Security Division, 450
U.S. 707 (1981).
Tilton V. Richardson, 403 U.S. 672 (1971),
Tinker v. Des Moines Independent School District, 393 U.S. 503
(1969).
Torcaso v. Watkins, 367 U.S. 488 (1961).
Town V, State, 377 So,2d 648 (FL S. Ct. 1979).
United States v. Ballard, 322 U.S. 78 (1944).
United States v. Kuch, 288 F. Supp. 439 (D.D.C. 1968).
United States v. Lee, 455 U.S. 252 (1981).
United States v. Seeger, 380 U.S. 163 (1965).
Valente v. Larson, 637 F.2d 562 (8th Cir. 1981), 452 U.S. 904 (1982).
Valley Forge Christian College v. Americans United for Separation of
Church and State, 454 U.S. 464 (1981).
Village of Schaumburg v. Citizens for a Better Environment, 444 U.S.
773 (1979).
Walz V. Tax Commission, 397 U.S. 664 (1970).
Welsh V, Unted States, 398 U.S. 333 (1970).
West Virginia State Board of Education v. Barnette, 319 U.S. 624
(1942).
Widmar v, Vincent 454 U.S. 263 (1981).
243
Wisconsin v, Yoder, 406 U.S. 205 (1972).
Wolman v. Walter, 433 U.S. 229 (1977).
Zorach v. Clausen, 343 U.S. 306 (1952).
244
APPENDIX A
CAMPUS RELIGIOUS GROUP SURVEY
In December, 1981, a landmark decision was made by the Supreme Court
of the United States in the case, Widmar v. Vincent. This decision
upheld a prior decision by the 8th Court of Appeals of August 4, 1980,
which held that student group's use of university facilities for
regular religious services is a "neutral accommodation" of religion
and not an establishment of religion.
As a partial requirement for the granting of the Ph.D. degree in
Higher and Postsecondary Education, I am beginning research on the
perceptions of Student Affairs Administrators regarding the rights of
religious groups in the California Tripartite System of Higher
Education. A portion of the study will be a presentation of the past,
present, and anticipated situations regarding officially recognized
religious groups on campus and what such recognition has meant and
presently means.
Your assistance in completing the enclosed questionnaire will be of
great assistance in my study. Please use the enclosed stamped,
self-addressed envelope for your reply. Thank you for your time and
thought.
INTRODUCTION
1. The institution you represent is associated with:
a. [ ] University of California
b. [ ] California State University
c. [ ] California Community Colleges
2. Student enrollment:
a. [ ] Under 4000
b. [ ] 4000 - 8000
c. [ ] 8000 - 12000
d. [ ] Over 12000
3. Student groups are under the direct oversight of:
a. [ ] Vice-President of Student Affairs
b. [ ] Dean of Students
c. [ ] Assistant Dean of Students
c. [ ] Other (Please designate) ___________________
4. Your familiarity with the case, Widmar v. Vincent is;
a. [ ] Very familiar
b. [ ] Somewhat familiar
c. [ ] Little familiarity
d. [ ] No familiarity
245
RELIGIOUS ORGANIZATIONS ON CAMPUS:
Please check those organizations which have official recognized
standing as student groups:
Christian Groups
5, [ ] Roman Catholic (Newman Club)
6, [ ] Protestant (Mainline churches)
7, [ ] Latter Day Saints
8, [ ] Christian Science
9, [ ] Jehovah's Witnesses
10, [ ] Other (Please specify) ___________________________________
Jewish Groups
11. [ ] Orthodox
12. [ ] Conservative
13. [ ] Reformed
14. [ ] Combination of above
Para-Church Organizations
15. [ ] Campus Crusade for Christ
16. [ ] Intervarsity Christian Fellowship
17. [ ] Navigators
18. [ ] Other (Please specify) ___________
Non-Christian Groups
19. [ ] Muslim
20. [ ] Buddhist
21. [ ] Shinto
22. [ ] Ba'hai
23. [ ] Other (Please specify)
Eclectic Groups
24. [ ] Unification Church
25. [ ] Kara Krishna (Krishna Consciousness)
26. [ ] Ecktanar
27. [ ] Scientology
28. [ ] Other (Please specify) _______________
REGULATION REGARDING RECOGNIZED RELIGIOUS STUDENT GROUPS
Please check all items pertinent to your institution. If an
item does not apply, please leave the space blank.
All student groups have been affected by
changes in regulations because of Widmar.
Religious groups are given official recogni
tion on this campus.
Religious groups, though recognized, are in
an associative status on this campus.
Religious student groups are using institu-
tinal facilities on this campus.
Yes No
29.
I ] [ ]
30.
[ ] [ ]
31.
[ ] [ ]
32.
[ ] [ ]
246
33. [ ]
34. [ ]
35. [ ]
36. [ ]
37. [ ]
POSSIBLE AREAS OF
] Religious groups receive funding from student
fees or other academic sources.
] All student organizations must have a faculty
sponsor.
] There are some regulations regarding the en
gagement of outside speakers for student
groups.
] Religious groups are allowed to solicit in the
institutional residence halls.
] Religious groups, whether on campus or not,
are allowed the privilege of advertising
through various campus media.
DIFFICULTY IN THE EMPLOYMENT OF THE WIDMAR RULING:
38.
39.
40.
41.
43.
44.
45.
46.
47.
48.
49.
50.
Yes
[ ]
[ ]
[ ]
[ ]
42. [ ]
[ ]
[ ]
[ ]
[ ]
[ ]
[ ]
[ ]
[ ]
No
Has there been an increase of requests from
religious groups for administrative recogni
tion?
Does the proliferation of student groups place
additinal work load on student affairs person
nel?
Has your institution had to increase personnel
in student affairs primarily to oversee student
groups?
Have you been able, thus far, to provide
scheduling of institutional facilities to pro
vide for all requests of recognized student
groups?
Have there been any contentious problems which
have arisen between religious student groups or
between religious student groups and others?
Do you agree with the Widmar ruling?
If you do not agree with the Widmar decision,
would you prefer to have all religious student
groups non-recognized?
Would you favor having all student organiza
tions maintain off-campus centers?
Would you favor off-campus centers for reli
gious groups only?
Do you believe that prior to the 20th century
there was a clearer concept of the separation
of church and state than there is now?
Do you believe that the Widmar ruling will
bring about a plethora of religious student
organizations?
Have you experienced an increase in the number
of student religious organizations since the
Widmar decision?
Have you encountered major difficulties in
complying with the Widmar decision?
247
Recognizing the demands on your time, it would be appreciated if:
a. you would send me a copy of any institutional regulations
regarding religious student groups (including regulations
promulgated prior to 1982).
b. you would provide any comments or suggestions to assist me
in the analysis of this topic.
I am deeply appreciative of your assistance. Thank you.
Cordially,
Richard I. McNeely
248
APPENDIX B
TOPIC OUTLINE FOR INTERVIEWS
Administrative Interviews
1. Are you familiar with the "equal access" law upheld by the
Supreme Court in the Widmar decision of 1981?
2. What is the status of religious clubs on your campus?
3. Do all student organizations have equal access rights in the
use of institutional facilities on your campus?
4. Are student religious organizations provided any funding from
student or other fees?
5. Has the Widmar ruling resulted in an increase in the number of
religious organizations requesting official recognition?
6. Have you encountered any difficulty with religious
organizations on campus?
7. Are you in agreedment with the "equal access" law?
Student and Religious Staff Interviews
1. Are you familiar with the Supreme Court's decision regarding
equal access for religious groups on public university and college
campuses?
2. Is the organization of which you are a member or in which you
work officially recognized as a student organization?
3. Does your organization meet regularly on campus?
4. Do you receive any funding from student or institutional
sources for your organization?
5. Is there any coordination of religious groups on your campus
other than merely listing them as recognized?
6. Have you encountered any problems from the administration i
the operation of your organization?
249
in
250
APPENDIX C
LIST OF INTERVIEWEES AND INSTITUTIONS
Dr. Michael Easton
Vice President, Student Affairs
University of Montana
Missoula, Montana
Dr. Cory Thompson
Chancellor
Orange County Community College District
Mr, Dennis Brockman
Staff worker: Campus Crusade for Christ
University of Montana
Missoula, Montana
Mr. Scott Young
Staff worker: Intervarsity Christian Fellowship
California State University
Long Beach, California
Mr. Rick Beck
Student
University of Montana (Grad)
University of Montana School of Law
Missoula, Montana
Ms. Leigh Kirkpatrick
Student
University of Montana
Missoula, Montana
Ms. Nancy Koch
Student
Montana State University
College of Nursing
Missoula Extended Campus
Missoula, Montana
Mr. Tim Munzing
Student
UCLA (Grad)
Los Angeles, California
UCI (Medicine)
Irvine, California
Ms. Nikki Olson
Student
Fullerton City College
251
APPENDIX D
Memorial and Remonstrance
By James Madison
To the Honorable the General Assembly of the State of Virginia
We, the subscribers, citizens of the said commonwealth, having taken
into serious consideration a bill printed by order of the last session
of the general assembly, entitled, "A bill for establishing a
provision for teachers of the Christian religion," and conceiving that
the same, if finally armed with the sanctions of a law, will be a
dangerous abuse of power, are bound, as faithful members of a free
state, to remonstrate against the said bill—
1, Because we hold it for a "fundamental and undeniable truth," that
religion, or the duty which we owe to our creator, and the manner of
discharging it, can be directed only by reason and conviction, not by
force or violence. The religion, then, of every man must be left to
the conviction and conscience of every man; and it is the right of
every man to exercise it as these may dictate. This right is, in its
nature, an unalienable right. It is unalienable, because the opinions
of men, depending only on the evidence contemplated in their own
minds, cannot follow the dictates of other men; it is unalienable,
also, because what is here a right towards men, is a duty towards the
creator. It is the duty of every man to render the creator such
homage, and such only, as he believes to be acceptable to him; this
duty is precedent, both in order of time and degree of obligation, to
the claims of civil society. Before any man can be considered as a
member of civil society, he must be considered as a subject of the
governor of the universe; and if a member of civil society, who enters
into any subordinate association, must always do it with a reservation
of his duty to the general authority ; much more must every man who
becomes a member of any particular civil society do it with the saving
his allegiance to the universal sovereign. We maintain, therefore,
that in matters of religion no man’s right is abridged by the
institution of civil society; and that religion is wholly exempt from
its cognizance. True it is, that no other rule exists, by which any
question which may divide society can be ultimately determined, but
the will of the majority; but it is also true, that the majority may
trespass on the rights of the minority.
2. Because, if religion be exempt from the authority of the society at
large, still less can it be subject to that of the legislative body.
The latter are but the creatures and vicegerents [sic] of the former.
Their jurisdiction is both derivative and limited. It is limited with
regard to the coordinate departments; more necessarily is it limited
with regard to the constituents. The preservation of a free
government requires not merely that the metes and bounds which
separate each department of power be universally maintained; but more
especially, that neither of them be suffered to overleap the great
253
barrier which defends the rights of the people. The rulers who are
guilty of such an encroachment, exceed the commission from which they
derive their authority, and are tyrants. The people who submit to it
are governed by laws made neither by themselves, nor by an authority
derived from them, and are slaves.
3. Because it is proper to take alarm at the first experiment on our
liberties. We hold this prudent jealousy to be the first duty of
citizens, and one of the noblest characteristics of the late
revolution. The freemen of America did not wait till usurped power
had strengthened itself by exercise, and entangled the question in
precedents. They saw all the consequences by denying the principle.
We revere this lesson too much soon to forget it. Who does not see
that the same authority which can establish Christianity, in exclusion
of all other religions, may establish, with the same ease, any
particular sect of Christians, in exclusion of all other sects? That
the same authority that can call for each citizen to contribute three
pence only of his property for the support of only one establishment,
may force him to conform to any one establishment, in all cases
whatsoever?
4. Because the bill violates that equality which ought to be the basis
of every law, and which is more indispensable in proportion as the
validity or expedience of any law is more liable to be impeached. If
"all men by nature are equally free and independent," all men are to
be considered as entering into society on equal conditions, as
relinquishing no more, and, therefore, retaining no less, one than
another, of their rights. Above all, they are to be considered as
retaining an "equal right to the free exercise of religion, according
to the dictates of conscience." While we assert for ourselves a
freedom to embrace, to profess, and to observe, the religion we
believe to be of divine origin, we cannot deny an equal freedom to
those whose minds have not yet yielded to the evidence which has
convinced us. If this freedom be abused, it is an offense against
God, not against man; to God, therefore, not to man, must an account
of it be rendered. As the bill violates equality by subjecting some
to peculiar burdens, so it violates the same principle by granting to
others peculiar exemptions. Are the Quakers and the Menonists the
only sects who think compulsive support of their religions unnecessary
and unwarrantable? Can their piety alone be entrusted with the care
of public worship? Ought their religions to be endowed, above all
others, with extraordinary privileges, by which proselytes may be
enticed from all others? We think too favorably of the justice and
good sense of these denominations to believe that they either covet
preeminence over their fellow citizens, or that they will be seduced
by them from the common opposition to the measure.
5. Because the bill implies, either that the civil magistrate is a
competent judge of truth, or that he may employ religion as an engine
of civil policy. The first is an arrogant pretension, falsified by
the contradictory opinions of rulers in all ages, and throughout the
253
world: the second is an unhallowed perversion of the means of
salvation.
6. Because the establishment proposed by the bill is not requisite for
the support of the Christian religion. To say that it is, is a
contradiction to the Christian religion itself; for every page of it
disavows a dependence on the powers of this world: it is a
contradiction to fact; for it is known that this religion both existed
and flourished, not only without the support of human laws, but in
spite of every opposition from them; and not only during the period of
miraculous aid, but long after it had been left to its own evidence,
and the ordinary care of Providence. Nay, it is a contradiction in
terms; for a religion not invented by human policy must have
pre-existed and been supported before it was established by human
policy. It is, moreover, to weaken in those who profess this religion
a pious confidence in its innate excellence, and the patronage of its
author; and to foster in those who still reject it, a suspicion that
its friends are too conscious of its fallacies to trust it to its own
merits.
7. Because experience witnesseth that ecclesiastical establishments,
instead of maintaining the purity and efficacy of religion, have had a
contrary operation. During almost fifteen centuries has the legal
establishment of Christianity been on trial. What have been its
fruits? More or less, in all places, pride and indolence in the
clergy; ignorance and servility in the laity; in both, superstition,
bigotry, and persecution. Enquire of the teachers of Christianity for
the ages in which it appeared in its greatest lustre; those of every
sect point to the ages prior to its incorporation with civil policy.
Propose a restoration of this primitive state, in which its teachers
depended on the voluntary rewards of their flocks; many of them
predict its downfall. On which side ought their testimony to have the
greatest weight, when for, or when against, their interest?
8. Because the establishment in question is not necessary for the
support of civil government. If it be urged as necessary for the
support of civil government only as it is a means of supporting
religion, and if it be not necessary for the latter purpose, it cannot
be necessary for the former. If religion be not within the cognizance
of civil government, how can its legal establishment be said to be
necessary to civil government? What influences, in fact, have
ecclesiastical establishments had on civil society? In some instances
they have been seen to erect a spiritual tyranny on thrones of
political tyranny; in no instance have they been seen the guardians
of the liberties of the people. Rulers who wished to subvert the
public liberty may have found an established clergy convenient
auxiliaries. A just government, instituted to secure and perpetuate
it, needs them not. Such a government will be best supported by
protecting every citizen in the enjoyment of his religion with the
same equal hand that protects his person and property; by neither
invading the equal rights of any sect, nor suffering any sect to
254
invade those of another.
9. Because the proposed establishment is a departure from that
generous policy which, offering an asylum to the persecuted and
oppressed of every nation and religion, promised a lustre to our
country, and an accession to the number of its citizens. What a
melancholy mark is the bill, of sudden degeneracy. Instead of holding
forth an asylum to the persecuted, it is itself a signal of
persecution. It degrades from the equal rank of citizens all those
whose opinions in religion do not bend to those of the legislative
authority. Distant as it may be, in its present form, from the
inquisition, it differs only in degree. The one is the first step,
the other the last, in the career of intolerance. The magnanimous
sufferer under this cruel scourge in foreign regions, must view the
bill as a beacon on our coast, warning him to seek some other haven,
where liberty and philanthropy, in their due extent, may offer a more
certain repose from his troubles.
10. Because it will have a like tendency to banish our citizens. The
allurements presented by other situations are every day thinning their
numbers. To superadd a fresh motive to emigration, by revoking the
liberty which they now enjoy, would be the same species of folly which
has dishonored and depopulated flourishing kingdoms.
11. Because it will destroy the moderation and harmony which the
forbearance of our laws to intermeddle with religion has produced
among its several sects. Torrents of blood have been spilt in the
world in vain attempts of the secular arm to extinguish religious
discord, by proscribing all differences in religious opinions. Time,
at length, has revealed the true remedy. Every relaxation of narrow
and rigorous policy, wherever it has been tried, has been found to
assuage the disease. The American theatre has exhibited proofs, that
equal and complete liberty, if it does not wholly eradicate it,
sufficiently destroys its malignant influence on the health and
prosperity of the state. If, with the salutary effects of this system
under our own eyes, we begin to contract the bounds of religious
freedom, we know no name that will too severely reproach our folly.
At least, let warning be taken at the first fruits of the threatened
innovation. The very appearance of the the bill has transformed that
"Christian forbearance, love, and charity," which of late mutually
prevailed, into animosities and jealousies, which may not soon be
appeased. What mischiefs may not be dreaded, should this enemy to the
public quiet be armed with the force of a law!
12. Because the policy of the bill is adverse to the diffusion of the
light of Christianity. The first wish of those who enjoy this
precious gift ought to be, that it may be imparted to the whole race
of mankind. Compare the number of those who have as yet received it,
with the number still remaining under the dominion of false religions,
and how small is the former! Does the policy of the bill tend to
lessen the disproportion? No: it at once discourages those who are
255
strangers to the light of revelation from coming into the region of
it: countenances, by example, the nations who continue in darkness,
in shutting out those who might convey it to them. Instead of
levelling, as far as possible, every obstacle to the victorious
progress of truth, the bill, with an ignoble and unchristian timidity,
would circumscribe it with a wall of defence against the encroachments
of error.
13. Because attempts to enforce by legal sanctions acts obnoxious to
so great proportion of citizens, tend to enervate the laws in general,
and to slacken the bands of society. If it be difficult to execute
any law which is not generally deemed necessary or salutary, what must
be the case where it is deemed invalid and dangerous? And what may be
the effect of so striking an example of impotency in the government on
its general authority?
14. Because a measure of such general magnitude and delicacy ought not
to be imposed, without the clearest evidence that it is called for by
a majority of citizens: and no satisfactory method is yet proposed,
by which the voice of the majority in this case may be determined, or
its influence secured. "The people of the respective counties are,
indeed, requested to signify their opinion, respecting the adoption of
the bill, to the next sessions of assembly ;" but the representation
must be made equal before the voice either of the representatives or
the counties will be that of the people. Our hope is, that neither of
the former will, after due consideration, espouse the dangerous
principle of the bill. Should the event disappoint us, it will still
leave us in full confidence that a fair appeal to the latter will
reverse the sentence against our liberties,
15. Because, finally, "the equal right of every citizen to the free
exercise of his religion, according to the dictates of conscience," is
held by the same tenure with all our other rights. If we recur to its
origin, it is equally the gift of nature; if we weigh its importance,
it cannot be less dear to us; if we consult the "declaration of those
rights which pertain to the good people of Virginia, as the basis and
foundation of government," it is enumerated with equal solemnity, or,
rather, studied emphasis.
Either, then, we must say that the will of the legislature is the only
measure of their authority, and that, in the plenitude of this
authority, they may sweep away all our fundamental rights; or, that
they are bound to leave this particular right untouched and sacred:
either we must say that they may control the freedom of the press, may
abolish the trial by jury, may swallow up the executive and judiciary
powers of the state; nay, that they may despoil us of our right of
suffrage, and erect themselves into an independent and hereditary
assembly: or, we must say, that they have no authority to enact into
law the bill under consideration. We, the subscribers, say, that the
general assembly of this commonwealth have no such authority; and that
no effort may be omitted, on our part, against so dangerous an
256
usurpation, we oppose to it in this remonstrance— earnestly praying,
as we are in duty bound, that the SUPREME LAWGIVER OF THE UNIVERSE, by
illuminating those to whom it is addressed, may on the one hand, turn
their councils from every act which affronts his holy prerogative, or
violates the trust committed to them; and, on the other, guide them
into every measure that may be worthy of his blessing, may redound to
their own praise, and may establish more firmly the liberties of the
people, and the prosperity and happiness of the commonwealth. (Stokes
and Pfeffer, 1964, pp. 55-60)
257
APPENDIX E
STATE OF CALIFORNIA TRIPARTITE SYSTEM OF
PUBLIC HIGHER EDUCATION:
ORGANIZATION AND CONTROL
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Asset Metadata
Creator
McNeely, Richard Irving
(author)
Core Title
The 'Widmar' (1981) decision and the status of religious liberty on the public college and university campus: Antecedents, effects, and prospects
School
Graduate School
Degree
Doctor of Philosophy
Degree Program
Education
Degree Conferral Date
1986-05
Publisher
University of Southern California
(original),
University of Southern California. Libraries
(digital)
Tag
education,OAI-PMH Harvest,philosophy, religion and theology,social sciences
Language
English
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293909
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McNeely, Richard Irving
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(contributing entity),
University of Southern California Dissertations and Theses
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The author retains rights to his/her dissertation, thesis or other graduate work according to U.S. copyright law. Electronic access is being provided by the USC Libraries in agreement with the au...
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education
philosophy, religion and theology
social sciences