The Constitution has emerged without new wounds from another brush with the Supreme Court. This is especially gratifying because the case concerned an issue about which the court has been and remains especially confused: the "establishment" of religion.
The court has held, 8-1, that the University of Missouri, Kansas City, erred when it promulgated a regulation prohibiting the use of university property for "religious worship or religious teaching." A student religious group sued, claiming violation of First Amendment rights of freedom of speech and free exercise of religion.
A lower court held that the university was right in thinking that the regulation was not only permissible but mandatory because of the constitutional ban on "establishment" of religion.
Onward the Christians soldiered, to an appeals court, which held for them. It ruled that the regulation constituted unconstitutional discrimination against a category of speech--religious speech--because of its content. The forces of Darkness pressed on to the Supreme Court, but Justice Lewis F. Powell Jr., an agent of Light if ever there was one, spoke for the majority in sustaining the appeals court and the religious group.
He employed the cumbersome, not to say rococo, criteria the court has constructed to test whether a state practice offends the Establishment Clause: does the practice have a secular purpose? Does its primary effect neither enhance nor inhibit religion? Does it foster excessive state entanglement with religion? Powell concluded that university openness toward religious groups would serve the secular purpose of, and have the primary effect of, enhancing intellectual exchange, with negligible "entanglement."
The fact that the court did not say a university can prohibit religious "worship" but not religious "discussion" may indicate that prudence is tempering the court's recent appetite for constitutional hair-splitting. The dissenting justice, Byron White, suggests such a distinction, but Powell calls it "judicially unmanageable."
White argues that a university may, without violating the Establishment Clause, permit its property to be used for religious purposes, but that the clause does not stipulate what the state is required to do. And he asks, interestingly: if all religious worship comes under the protection of free speech, what additional purpose is served by the constitutional guarantee of "free exercise" of religion? The protection of free speech should be sufficient.
Furthermore, last term the court held that posting the Ten Commandments in a classroom constitutes "establishment" of religion. Clearly the court then thought the content of religious communication could justify discrimination against it.
Justice John Paul Stevens, although joining the majority, argues that the court's particular approach to analysis of this question undermines the academic freedom of public universities. "A university," he says, "legitimately may regard some subjects as more relevant to its educational mission than others." If two groups request the use of the only suitable facility at a particular time, one for frivolity, the other for rehearsing "Hamlet," the First Amendment does not require that the room be reserved for the group that asked first. The university could prefer the content of one form of expression over the other.
The intellectual tangles and potential problems that White and Stevens note are unintended results of unnecessary complexity woven by the court since it abandoned the correct construction of the Establishment Clause. Properly construed, it requires the state to be neutral between religion and irreligion--with the predictable and often intended effect of enhancing the latter.
It is the court's fault that the university was confused about what the Establishment Clause requires. It is the university's fault that the university argued that providing a forum for the religious group would undermine its secular purpose of providing a forum for the exchange of ideas. The university may be terminally confused about various important ideas, including the idea of a university.
The sort of people who favor proscribing religious groups probably would unhesitatingly favor campus hospitality for groups advocating communism, homosexuality, astrology, even supply- side economics. But the court has so muddled the nation's mind concerning the Establishment Clause, the university felt a constitutional duty to drive off campus a group whose interest is the religion that is a wellspring from which the nation and its Constitution derive.