From Widmar to Mergens: The Winding Road of First Amendment Analysis

Authors

Rosemary C. Salomone, St. John's University School of LawFollow

Document Type

Article

Publication Title

Hastings Constitutional Law Quarterly

Publication Date

Winter 1991

Volume

18

First Page

295

Abstract

(Excerpt)

In 1981, the Supreme Court decided Widmar v. Vincent, holding that a state university that created a "limited open forum" by opening its facilities to student organizations must grant equal access to religiously affiliated groups. The university's failure to do so constituted content-based discrimination that violated the First Amendment to the United States Constitution. The Court rejected the university's argument that its policy to disallow religious meetings on campus was implemented to avoid contravening establishment clause principles. The Court's opinion was inconclusive as to whether the Widmar rationale would apply to secondary schools.

During the same period, Congress and state legislatures mounted numerous efforts to permit prayer in public schools. As the political debate over school prayer raged on, moderate forces in Congress seized upon the "equal access" concept of Widmar as a reasonable compromise. Thus, in 1984, Congress enacted the Equal Access Act, which applied the Widmar doctrine to the secondary school setting. The Equal Access Act was a bipartisan legislative attempt to provide legal protection for student-initiated religious speech while avoiding the constitutional pitfalls of school-sponsored prayer. The ambiguous language and legislative history of the Equal Access Act, however, left school districts confused about the intricacies of applying the Act's provisions to a particular educational context.

The Supreme Court attempted to define the Equal Access Act's parameters and lay to rest the constitutional concerns raised by the statute's opponents in Board of Education v. Mergens. The Court faced a multifaceted constitutional dilemma interpreting the Equal Access Act in the context of the Mergens facts. The Mergens Court strained to uphold a congressional enactment derived from heated controversy, tough negotiation, and ultimate compromise that left a legislative history rife with internal contradictions and ambiguities.

Mergens, as Widmar, further set the Court to balancing the conflicting values underlying the Free Speech and Religion Clauses of the First Amendment. But the Court's membership, ideology, and constitutional doctrine had evolved during the years between Widmar and Mergens. The Justices in Mergens faced the tasks of (1) weaving together free speech and religion clause developments and (2) reconciling the inconsistencies between the Court's expressed views in more recent secondary school cases and those expressed in the past.

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Available at: https://repository.uclawsf.edu/hastings_constitutional_law_quaterly/vol18/iss2/3/