Rosenberger v. University of Virginia

Justice Sandra Day O'Connor, in writing a concurring opinion, sought to limit the utility of the decision as a precedent for other forms of direct public financial aid to religious activities. She emphasized that in this case the student publications were actually independent of the university and included disclaimers in every issue to that effect. In addition, the Student Activity Fund payments were sent directly to the printer, not to the students themselves. She also underscored that Wide Awake was only one among a large number of school funded student publications. Lastly, O'Connor asserted the funds were not normal government revenue but derived from student payments, the distribution was administered by students, and the funds were available only to students who paid their fees.

Justice David H. Souter was joined by Justices John Paul Stevens, Ruth Bader Ginsburg, and Steven Breyer, in dissent. Souter wrote, "The Court today, for the first time, approves direct funding of core religious activities by an arm of the State." Souter contended that the university's use of mandatory student fees to pay printing costs for a religious publication constituted a direct subsidy forbidden under the Establishment Clause. Souter asserted the indirect funding cases heard by the majority as precedence were fundamentally different.

Souter concluded,

Thus the Court's reasoning requires a university that funds private publications about any primarily non-religious topic also to fund publications primarily espousing adherence to or rejection of religion . . . . The Court's contrary holding amounts to a significant reformulation of our viewpoint discrimination precedents and will significantly expand access to limited-access forums.