Subsidy or Equal Treatment?

One of the most important and vexing questions in contemporary disputes involving government aid to religious institutions is whether that aid is better conceived of as a subsidy to religion or as treating religious institutions equally to similarly situated non-religious institutions. We have already explored part of this question in cases like Locke and Espinoza. Today, we consider the issue in the context of campus student organizations.

This will also be a good time to revisit our earlier discussion about the Jehovah’s Witness cases and the relationship between religious freedom and other rights protected under the First Amendment, including the rights of speech and association. One aspect of free speech doctrine that underlies today’s class is the requirement that government generally may not engage in viewpoint discrimination, and sometimes may not engage in content discrimination. An example of a content-based restriction is a rule banning “political speech”—here, certain types of speech are prohibited because of their content. Viewpoint-based restrictions are a subset of content-based restrictions; an example is a law saying that any expression on social media that is critical of the President gets banned. These should be contrasted with “content-neutral” restrictions, such as a noise ordinance that prevents all loud speech after 10 pm, regardless of its content.

We will also talk about public forum doctrine and the related concept of government speech. You should keep in mind four classifications:

  • Traditional public forum: the kind of forum most open to speech, and the most protective of speech. Examples: streets and parks.

  • Limited public forum: a forum in which the government can engage in some content discrimination but typically not viewpoint discrimination. Examples: student activities fund and public-school classrooms.

  • Nonpublic forum: a forum that is heavily regulated by government but still maintains some restrictions on viewpoint discrimination.

  • Government speech: not a forum at all but the government’s own message.

As you read these cases, consider what competing concerns are at play. Why might a court look to Free Speech to resolve potential issues in this area? Do you think this is more or less effective than considering Free Exercise and Establishment?

Reading Assignment:

  • Rosenberger v. Rector and Visitors of the University of Virginia, 515 U.S. 819 (1995)

  • Christian Legal Society v. Martinez, 561 U.S. 661 (2010) 

Optional Reading: