Paulsen on “The Most Important Religious Liberty Case of the Last 30 Years”

Constitutional scholar Michael Stokes Paulsen has an interesting piece about Widmar v. Vincent, which he describes as just that important.  In Widmar, the issue was whether UMKC, a state school, could exclude a Christian group from using its facilities to engage in religious worship on the same terms that other groups used them.  As Professor Paulsen notes, by an 8-1 vote, the Court said that it could not exclude the religious group.

An important piece of that case, which Paulsen notes and which was regrettably ignored and/or marginalized by the Second Circuit in its Bronx Household of Faith decision by drawing an irrelevant distinction between worship services and religious expression, was that there simply is no establishment concern that is activated by permitting religious groups to use public facilities for religious purposes on equal terms with others.  It is regrettable that the Supreme Court has denied cert. in Bronx Household, since it would have represented an occasion to reaffirm that principle.  Moreover, while state use of religious facilities may have been an establishment concern, the reverse was certainly not of concern as an original matter.  (See Donald Drakeman’s book)

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