Rosenberger v. UVa (1995)

-Submitted by David Drumm (Nal), Guest Blogger

bill of rightsThe 5-4 Supreme Court case of Rosenberger v. University of Virginia has been cited by those arguing that the government may not impose viewpoint-based restrictions by revoking the tax-exempt status of the Westboro Baptist Church. The case involved the University’s refusal to use the Student Activities Fund (SAF) to pay for a Christian student newspaper, Wide Awake. The University argued that an SAF Guideline prohibited funds going to an activity that “primarily promotes or manifests a particular belie[f] in or about a deity or an ultimate reality.” The District Court ruled for the University, and the United States Court of Appeals for the Fourth Circuit disagreed saying that there is a “presumptive violation of the Speech Clause when viewpoint discrimination was invoked to deny third party payment otherwise available.”

The Court held that “[t]he Guideline invoked to deny SAF support, both in its terms and in its application to these petitioners, is a denial of their right of free speech.” J. O’Connor, wrote in her concurrence, that “[w}hen two bedrock principles so conflict, understandably neither can provide the definitive answer.”

J. Kennedy, in the opinion of the Court, wrote:

The first danger to liberty lies in granting the State the power to examine publications to determine whether or not they are based on some ultimate idea and if so for the State to classify them. The second, and corollary, danger is to speech from the chilling of individual thought and expression.

J. Souter, in his dissent, wrote, after noting the publication’s proselytizing:

Using public funds for the direct subsidization of preaching the word is categorically forbidden under the Establishment Clause, and if the Clause was meant to accomplish nothing else, it was meant to bar this use of public money.

J. Souter quoted James Madison’s Memorial and Remonstrance, in which Madison opposed “A Bill establishing a provision for Teachers of the Christian Religion,” and wrote:

Who does not see that . . . the same authority which can force a citizen to contribute three pence only of his property for the support of any one establishment, may force him to conform to any other establishment in all cases whatsoever?

However, J. Thomas points out that Madison’s opposition to the bill that required contribution to religious entities was because the bill singled out those entities for special benefits. Madison noted that the bill “violates the equality which ought to be the basis of every law.”

J. Souter notes the inequality, and writes that evenhandedness:

as one element of a permissibly attenuated benefit is, of course, a far cry from evenhandedness as a sufficient condition of constitutionality for direct financial support of religious proselytization, and our cases have unsurprisingly repudiated any such attempt to cut the Establishment Clause down to a mere prohibition against unequal direct aid.

The direct financial aid found in Rosenberger is different from the indirect aid found with tax-exempt entities such as the Westboro Baptist Church. J. Souter’s compelling arguments against direct aid wouldn’t see to apply to the indirect financial aid we find in tax exemption.

H/T: Eugene Volokh, Jonathan Turley.

20 thoughts on “Rosenberger v. UVa (1995)

  1. The Establishment Clause, like Sinter Klaus, should trump. So, if a university, using public funds, starts prosylitizing anti homophobia from the Pope in a university newspaper, then the Court should say No, not Yes. Otherwise the flock will get fleeced by the wrong people.

  2. I guess I think like Justice Kennedy; in this case, he says: The first danger to liberty lies in granting the State the power to examine publications to determine whether or not they are based on some ultimate idea and if so for the State to classify them. The second, and corollary, danger is to speech from the chilling of individual thought and expression.

    (Although I do think student publications need to be examined to restrict the use of libel, explicit threats, copyright infringement, the incitement of violence and any other language for which the University might be held liable. But that is prudent review by an attorney.)

    The third, and corollary danger, is that of censorship. I think the university needs to find a way to spend the Student Activity Fund in a way that does not involve effectively censoring the speech of students. There are plenty of expenses, in student activities, that have nothing to do with speech. Pizza, for example, or donuts. Supplies, including for printing or signs.

  3. Congress has enacted special tax laws that benefit churches and other religious organizations. These include the tax exemptions we are now discussing and other significant financial benefits. Every time a church or other religious organization takes advantage or abuses these benefits the rest of us get to pay for their activities. It is time for all of us to say enough . Am not longer interested in paying for these benefits that were granted because of all the good works churches do. They stopped doing that kind of thing with their own money long ago. 60% of the Catholic Charities budget comes from tax payers.
    The WBC is not the only “church” that has begun to sound more like a hate group. The Catholic church’s leader the Pope has announced that the reasons that we don’t have world peace are gay marriage, abortion and euthanasia. He also granted a special blessing to the President of Uganda who is pushing legislation that would require the execution of gay people. Does his church look any less of a hate group than WBC.

    There is a long list of other religious leaders who have actively or tacitly supported murder of actual live doctors for provided health care services to women. Or who support laws that demean and punish women for their gender.

    Churches and other religious institutions have, by their conduct, given up the privileges they have been granted. Further, we can no longer support this kind of largess to these institutions at the federal, state or local levels. It is time to end all ofnthesentax exemptions and other benefits now.

  4. IMO there are cases which are more on point to the factual issues involved in Westboro Baptist Church.

    One reason I say this is that the procedural sequence that would happen would be the revocation of an already granted and existing tax exempt status.

    Additionally, I would focus on the definition of “charitable” and argue that Westboro does not have a non-racial, non-biased, or “charitable” essence:

    Section 501(c)(3) therefore must be analyzed and construed within the framework of the Internal Revenue Code and against the background of the congressional purposes. Such an examination reveals unmistakable evidence that, underlying all relevant parts of the Code, is the intent that entitlement to tax exemption depends on meeting certain common law standards of charity — namely, that an institution seeking tax-exempt status must serve a public purpose and not be contrary to established public policy.

    This “charitable” concept appears explicitly in § 170 of the Code. That section contains a list of organizations virtually identical to that contained in § 501(c)(3). It is apparent that Congress intended that list to have the same meaning in both sections. In § 170, Congress used the list of organizations in defining the term “charitable contributions.” On its face, therefore, § 170 reveals that Congress’ intention was to provide tax benefits to organizations serving charitable purposes.

    (Bob Jones U. v. US, 461 U.S. 574). The Bob Jones case involved revocation of tax exempt status because being biased does not fit the criteria for being charitable:

    … a private school not having a racially nondiscriminatory policy as to students is not “charitable” within the common law concepts reflected in §§ 170 and 501(c)(3) …

    (ibid). Thus we move to a consideration of whether or not Westboro Baptist Church violates the requirement of charity as defined by the common law at issue.

    The Anti-defamation League describes Westboro as:

    … WBC has targeted dozens of Jewish institutions around the country, from Israeli consulates to synagogues to Jewish community centers, distributing anti-Semitic fliers to announce planned protests at these sites. WBC has also been sending volumes (in some cases dozens over the course of a week) of faxes and emails with anti-Semitic and anti-gay messages to various Jewish institutions and individuals.

    In addition, in April 2010, the group began mailing a virulently anti-Semitic DVD to Jewish organizations and leaders. The DVD also attacks President Obama, describing him as the anti-Christ, and is filled with anti-gay and anti-Catholic vitriol.

    (About WBC, emphasis added). These inflammatory policies and practices of WBC are not charitable, thus, while the First Amendment protects their right to speak and act as they do, it does not grant them tax exempt status.

    If it has not already happened, their tax exempt status should be revoked forthwith.

  5. when you go to the UVa you pay fees and tuition to offset some of the costs of a state funded education. the fees and tuitions are paid by people of all faiths as are the tax dollars which fund the rest of money needed to educate a person for 4 years.

    It seems to me all faiths should have have access to funding a newspaper representing their views.

    “The University argued that an SAF Guideline prohibited funds going to an activity that “primarily promotes or manifests a particular belie[f] in or about a deity or an ultimate reality.””

    Based on a statement so broad as this, I could figure out a way to de-fund any student activity.

    Limiting speech and thought at a University is rather counterproductive. After all we send our children to University to think and hash out ideas. It is too bad the PC police have their ugly hand in this.

    Maybe we need to do away with political correctness on college campuses and make them free speech zones, although gun free zones dont seem to work too well.

  6. and to think the Virginia Statute for Religious Freedom was penned by Thomas Jefferson, the founder of the University of Virginia.

  7. simple and 100% fair solution… revoke the entire asinine idea that a claim of a religious belief allows you business to be exempt from taxes, making everyone else pay more.

    Treat all businesses like businesses. Tax them like businesses, give them various tax deductions like businesses and allow them to participate in politics.

  8. The Westboro Baptist Church, rather than practising charity as defined by IRS tax exemption rules, appears to qualify as a persecutor, the opposite of the common law meaning of charity:

    Persecution can be
    inflicted by the government, or by a group the government does not control. As a general matter, persecution is the infliction of suffering or harm on those who differ in race, religion, or political opinion in a way regarded as offensive.

    (Maini v INS, 9th Cir., 2000). While Westboro has the First Amendment right to verbal persecution, it does not have tax exemption rights as a result of its egregious non-charitable characteristics.

  9. The whole idea of NOT establishing religion and of protecting free speech was to keep the government, which had rights over the citizen, separate from the (any) church, which did NOT unless the citizen chose to voluntarily submit himself to those rights. Based on that, the next step is that the government could collect money from the citizen even against his will, but the (any) church could not. Based on that, the next step is that the government could grant “do not pay” status to organizations that its elected representatives chose to exempt from the taxation. Religious organizations fell into that exemption. But still, the job of religion has to remain separate and not encroach upon the job of government. When a (any) church seeks to change the behavior of individuals who have not voluntarily submitted their own will to that (any) church, and when it seeks to enter the public domain to do that, it is starting to encroach upon the government prerogatives. A church can forbid its own church members from engaging in homosexuality and it can promulgate the idea that punishments are meted out by the (any) god for allowing homosexuality, that’s fine. But when it enters the public realm and tries to enforce its views on others in an aggressive way, and in so doing, it injures the public peace of others who do not wish to take part in that religion, there is ample cause to examine whether or not it is still acting as a religion, or whether it is beginning to (or continuing to) act as a governmental authority, albeit without typical forms of enforcement.

    What about those typical forms of enforcement? An employer can be forced by his government to put up a sign in his premises that informs his employees of their rights, rights that he does not want to enforce, and that he does not even want them to know about. He can be forced to do that and if he does not comply, the government can take away his money, his house, even his freedom. He is being denied his right to tell his employees that they have no rights. Is his free speech being abridged? It is not, because there is an overriding government interest involved and the government CAN enforce what the employer, as a non-governmental entity, and his business, as a non-governmental entity, canNOT enforce. And that’s OK with us.

    So the conduct of the Westboro Baptist Church is not strictly religion. So long as homosexuality is not illegal under US law, and so long as they seek to criminalize it by some method other than lobbying their elected representatives to do so for them, and so long as they threaten, with tortious behavior, the right of anybody who is not a Westboro church member to act in legal ways that church disdains, they are in a grey area and can be evaluated for it.

    As far as public money to be used for religious teaching of any kind, that should be a no-brainer. If you want to teach people to be Christians or Muslims or Zoroastrians, reach into your pocket for your after-tax dollars and spend them doing that.

  10. Malisha, well said.

    Bron, “Limiting speech and thought at a University is rather counterproductive. After all we send our children to University to think and hash out ideas. It is too bad the PC police have their ugly hand in this.”

    No one is trying to limit the speech of the students, they are just saying the University (and the other students via their student fees) should not be paying for it. Those wanting to print the newsletter can pay for it themselves.

  11. “The first danger to liberty lies in granting the State the power to examine publications to determine whether or not they are based on some ultimate idea and if so for the State to classify them.”

    Specious argument — the establishment/entanglement clause of the first amendment requires that the publication be examined to determine whether the government is funding or otherwise directly supporting a publication favoring or dissing a religion.

    The even handed application of neutral content law in the establishment/entanglement arena is an abdication of responsibility.

  12. It is ok for a private school on its own dime to promote religion. For a public school to promote religion on the state’s dime violates the Establishment Clause. This is a separate prong of the First Amendment and the free press prong and the free speech prong do not trump, Donald or otherwise, the Establishment Clause. One has to keep the prongs separate and apart. Separate but not equal. Otherwise the state university in Utah will be preaching through their newspaper and internet web that nine wives are ok.

  13. BarkinDog, you say: “Otherwise the state university in Utah will be preaching through their newspaper and internet web that nine wives are ok.”

    Well, nine wives ARE OK. Usually it’s their one husband who isn’t. Arf Arf!

  14. Raff,

    I think tax exempt status such as these should not be content regulated….. It’s a slippery slope to say what’s what…..what if all of a sudden a political party should be not allowed exempt status….. It whittles away those rights we take for granted…..

  15. If I bark into this Dogalogue Machine and only intend to bark! then it comes out as “bark”. If I am trying to communicate in humanoid with you folks my bark is in dog talk, not dog bark to human bark and the dog talk (as I would talk to another dog) gets translated into English humanoid lingo.

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