First Amendment Watch — Some Dangerous Novelties: The Vernon and Rosenberger Cases

Why a “FIRST Amendment Watch”? The 45 words of the First Amendment were placed in the Constitution in 1791, and not a syllable of that text ever changes. What’s there to watch? We watch, of course, not the Amendment but what our courts do to the meaning of its words. In two cases now pending in the Supreme Court, we shall again look with special interest to see what possible new meanings the Court may give to those First Amendment phrases which protect citizens’ freedoms of speech, press, assembly, and religion.

As to the first case: imagine that your state has enacted a law which reads:

The State shall henceforth call for examination of all present or prospective public employees to determine (a) whether their personal religious beliefs may adversely impact on the performance of their duties in office, (b) whether they consult with their ministers, priests, or rabbis on matters of public policy.

To put it mildly, would not your reaction be violent? And you’d see at once the limitless possibilities for evil of such a statute. Not escaping your concern would be application of the law’s principle to candidates for judgeships. Under that broad principle it would indeed be relevant for the Senate Judiciary Committee to inquire whether a Supreme Court nominee’s evangelical, Jewish, or Catholic moral beliefs might “adversely impact” on the discharge of his or her duties as justice. The vista of evils would be infinite. The vice of the statute would, of course, be the use of the power and prestige of government to call for invasion of the citadel of the individual’s religious mind and heart and to pursue public surveillance of religions and religious association. The principle would cast an ideological chill on the services of the millions who are public employees.

Yet it is that principle that is involved in the case of Vernon v. City of Los Angeles. By 1991 Robert Vernon had served with distinction for 38 years in the Los Angeles Police Department, rising from patrolman to Assistant Chief. In 1973, as an official duty, he had authored a scholarly research paper which concluded, on purely secular grounds, that it was inadvisable to hire homosexuals as police officers. In 1976 he had prepared, for his church, an audiotape echoing St. Paul’s views on family life and marriage. A devoted member of an evangelical church, he had not concealed his Christian beliefs.

In 1991 Vernon made the first cut for Chief. There were, however, rivals for the job, and mainly a smoldering undercurrent of bitter antagonism toward him on the part of a handful of LAPD members, highly placed political sympathizers of theirs, and zealous defenders of the public weal from Hollywood. A Los Angeles Magazine article (May 5, 1991) entitled, “The Dan Quayle Principle Strikes Again,” quoted from the 15 year-old audiotape, and portrayed Vernon as a born-again religious fanatic. Like gasoline poured on smoldering embers, a conflagration ensued. The Los Angeles City Council now demanded that the Police Commission order an investigation of Vernon and released its demand to the national media. The Washington Post, USA Today and 31 other media conveyed to the country the story of a religious zealot, unstable, biased, unreliable. Overnight, Vernon’s good name and career were destroyed. But our First Amendment Watch focuses, not on his plight, but on the precise text of the City Council order to the Police Commission.

This mandate was twofold. First, it sought an inquiry into Vernon’s on-duty conduct. Vernon’s enemies had surfeited the City Council with rumors that he had sought to impose his religion on LAPD employees; that, as a “fundamentalist” (which Vernon denied being) he must inevitably have discriminated against women and homosexuals. Then there was the fish story — that Vernon used the religious symbol of an ixthus on his communications. (It was in fact a secretary’s sign-off notation.) Vernon, though supplying depositions showing the charges to be baseless, responded that it was not only the right, but the duty, of the City to investigate all charges of on-duty misconduct. He vehemently, however, protested the second inquiry sought: an investigation (a) of how his religious beliefs may have impacted on the performance of his duties, and (b) of his “consultations with his church elders on matters of public policy.” Chief of Police Daryl Gates, designated to conduct the investigation, called it a “witch hunt.” He refused to go into Vernon’s religion, and, after a five-month review of Vernon’s conduct, found him wholly blameless in the performance of his duties in office. But by then Vernon had found his career ruined. Decrying the fact that “City government is looking at me as religiously incorrect and to be purged,” Vernon sought redress in the courts. Dismissed without trial by the U.S. District Court at Los Angeles, Vernon appealed to the U.S. Court of Appeals for the Ninth Circuit. That court, totally ignoring the significance of the second inquiry, said that to mandate it was perfectly proper because Vernon’s rumored on-duty religious activities would violate the Establishment Clause, i.e., Vernon, as a public official might be foisting his religious preferences on LAPD employees. In appealing now to the Supreme Court, Robert Vernon squarely presents this question: Is not the First Amendment violated by governmental action which mandates investigation of a public employee’s religious beliefs and associations? Such a question has never before been raised in our courts because never previously has any governmental body ever ventured the incredible action of the Los Angeles City officials. In the coming months, the Supreme Court will be deciding whether or not it will take up this fateful case.

The second pending case of major First Amendment interest is Rosenberger v. The Rector and Visitors of the University of Virginia. In 1990 a number of students at the state-run University of Virginia founded an organization for publication of a journal of Christian perspectives called Wide Awake. In it appeared such articles as the “Christian solution to the calamity of racism,” C.S. Lewis’s ideas about evil and free will, and Pope John Paul II’s “ringing denunciation of socialism” in Centesimus annus. The fund’s guidelines excluded “religious activities” from funding. Ruling that publication of Wide Awake was a religious activity, the University held Wide Awake ineligible for funding. Wide Awake‘s sponsors, being denied participation in funds, while student publications of secular content were being funded, brought suit in federal court under three First Amendment headings: freedom of speech, freedom of press, and free exercise of religion. Losing on all three counts in the trial court, the sponsors appealed to the U.S. Court of Appeals for the Fourth Circuit. On March 14 that court held that the University’s refusal to permit funding of Wide Awake violated its freedoms of speech and press. “Religious exercise,” said the court, is a form of “speech.” The University, by creating “an uneven playing field on which the advantage is tilted toward [organizations] engaged in wholly secular modes of expression,” violated Wide Awake‘s freedom of speech and press. “When funds,” the court said, “are made available to organizations generally, they must be distributed in a viewpoint-neutral manner.” It would seem that Wide Awake could now rejoice: denial of funds to it was unconstitutional.

But having found the denial of funding on free speech and free press grounds, the court went on to find it constitutional on another ground. Since funding of Wide Awake would be funding of a “religious activity,” the funding would violate the Establishment Clause. The court went on to say that the university had a compelling state interest in barring funding “that would have the primary effect of advancing religion at the University of Virginia” and in “preserving the University of Virginia from an excessive entanglement with religion.” The court thus employed the First Amendment’s Establishment Clause to override two other clauses of the same Amendment. On August 22, the bewildered students petitioned the Supreme Court to review this amazing conclusion.

So our High Court now has before it radical judicial novelties from two circuits. They are dangerous novelties, each putting the Establishment Clause to repressive uses never before conceived. Written by the Constitution’s framers to bar the creation of a state church or an equivalent preference for a particular religion, the Vernon and Rosenberger decisions extend it to becoming an even more formidable weapon for secularizing the culture than the Supreme Court has made it up to now. Each circuit has confidently cited the Supreme Court’s 1971 decision in Lemon v. Kurtzman* as its justification for an arcane ruling. It will be interesting to see whether the High Court will permit these untoward extensions of its already untoward teachings.


* I invite the reader’s attention to the new CRISIS Book which I have authored, Mere Creatures of the State?, for an exposition of the origins and implications of the Lemon decision, which decision I characterize with the title ” ‘No Popery’ in New Garb.”


William Bentley Ball was one of the nation's foremost Catholic constitutional lawyers. He died in 2000.

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