Justice Kennedy’s Best First Amendment Opinion?

Before the chaos surrounding the confirmation of his successor gets underway next week, a look back at the legacy of Justice Anthony Kennedy. Safe to say he will most be remembered for the series of cases involving LGBT rights from Romer v. Evans in 1996 through Lawrence v. Texas, United States v. Windsor, and Obergefell v. Hodges in 2015. He was in the middle of the Court on abortion, upholding the core of Roe v. Wade in the plurality opinion in Planned Parenthood v. Casey in 1992 while writing an opinion upholding restrictions on abortion in Gonzales v. Carhart in 2007. And he wrote important decisions on federalism questions, notably Boerne v. Flores involving Congress’s power to enforce Section 5 of the Fourteenth Amendment and Alden v. Maine regarding state sovereign immunity.

He also had an outsized influence in First Amendment law, both as to freedom of speech and the Religion Clauses: e.g., Citizens United v. FEC, Town of Greece v. Galloway, Lukumi Babalu Aye v. Hialeah, Sorrell v. IMS Health, and, most recently, Masterpiece Cakeshop v. Colorado Civil Rights Commission. But what was Justice Kennedy’s best First Amendment opinion (“best” here just meaning my own subjective judgment blending together lasting doctrinal importance with soundness of result and analysis)?

My candidate: Rosenberger v. Rector & Visitors of the University of Virginia (1995). Recall that Rosenberger was about whether UVA could deny student activity funding (specifically payment for printing costs) to a Christian student publication as part of a policy that denied such funding to “religious activities.” UVA defended the policy on the grounds that there was no content or viewpoint-based restriction on speech in the policy and that the policy was required by the Establishment Clause (the case was argued by two academic luminaries--Michael McConnell for Rosenberger and John Jeffries for UVA). Writing for a 5-4 majority, Justice Kennedy held that the denial of funding was an unconstitutional violation of free speech that complying with the Establishment Clause did not excuse.

I won’t try to summarize all of the twists and turns in Rosenberger, but here are briefly what seem to me the two most important and lasting aspects of Justice Kennedy’s opinion:

1. Rosenberger placed an equality norm at the center of cases about religious speech and government funding of religious activities. Justice Kennedy’s opinion in Rosenberger doubled down on the Court’s equal access cases such as Lamb’s Chapel and refused to allow religion as a category to be treated distinctly or suspiciously when the state regulates expression or provides public benefits (seen most recently in Trinity Lutheran v. Comer). This comes about in Rosenberger through two moves in free speech doctrine: deeming the provision of funding by UVA a public forum (though more in a “metaphysical than in a spatial or geographic sense”) and holding that the exclusion of religious perspectives is unconstitutional viewpoint discrimination. And even though some cases (notably Locke v. Davey and CLS v. Martinez) might be hard to square with what I’m calling Rosenberger’s religious equality norm, Rosenberger still put that concern on a new footing.

2. Rosenberger marked an important departure from the Establishment Clause separationism of the 1970s and 80s in cases such as Lemon, Nyquist, and Aguilar. Of course, the issue in Rosenberger was in a sense the converse of the usual Establishment Clause funding case, i.e., not “may the government fund religious activities?” but “must the government not fund religious activities?” Justice Kennedy’s opinion states that so long as a program is neutral toward religion, the Establishment Clause does not require (let alone excuse) viewpoint-based restrictions on religious speech: “[T]he guarantee of neutrality is respected, not offended, when the government, following neutral criteria and evenhanded policies, extends benefits to recipients whose ideologies and viewpoints, including religious ones, are broad and diverse.” And so while the Establishment Clause discussion in Rosenberger is subsidiary to the free speech claim, it also foretold the Court’s move away from strict separationism in later cases such as Agostini v. Felton in 1997 and Zelman v. Simmons-Harris in 2002 (which characterized Rosenberger as “involv[ing] an individual and insubstantial use of neutrally available public funds for a religious purpose”).

May Justice Kennedy enjoy many happy years in retirement—and with our gratitude for Rosenberger v. UVA.