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9 J.C. & U.L. 469 (1982-1983)
Widmar v. Vincent and the Purposes of the Establishment Clause

handle is hein.journals/jcolunly9 and id is 493 raw text is: WIDMAR v. VINCENT AND THE PURPOSES OF THE ESTABLISHMENT CLAUSE JAMES M. SMART, JR.* I. INTRODUCTION In Widmar v. Vincent,' the U.S. Supreme Court addressed the issue of whether a state university which generally makes its facilities available for voluntary student activities may refuse accommodation to a recognized student group desiring to use its facilities for religious ac- tivities. The Court's 8 to 1 decision in December, 1981, striking down such a restriction at the University of Missouri, has been viewed with alarm by some, including Mr. Ted Ayres, the author of Widmar v. Vin- cent: The Beginning of the End for the Establishment Clause?2 Mr. Ayres suggests in his article that in Widmar the Court has either intentionally, or unwittingly, gutted the Establishment Clause. '3 To take such a view of the case, however, is, in this writer's opinion, to have a perspective of the historical meaning and application of the Establishment Clause which differs from that of the Court and other students of the First Amendment.4 It is the purpose of this article to show that Widmar is entirely consistent with Establishment Clause precedent and does not in any way threaten to undermine the purpose or the in- tended reach of that provision. Moreover, Widmar may contribute to a * Attorney, Kansas City, Missouri. A.B., College of William and Mary; J.D., University of Missouri. Mr. Smart was lead counsel for the student group in Widmar. 1 102 S. Ct. 269 (1981). 2 J. COLL. & U.L. 511 (1981-82); see Note, Widmar v. Vincent; Confusion Continues in the Conflict Between the Religion Clauses of the First Amendment, 33 MERCER L. REV. 1283 (1982), for another commentary critical of the Widmar decision. Ayres, supra, note 2, at 514. The Establishment Clause provides the Congress shall make no law respecting an establishment of religion .... U.S. Const., Amend. I. The Establishment Clause has been applied to the states through incorporation into the Four- teenth Amendment Due Process Clause. Everson v. Board of Education, 330 U.S. 1 (1947). 4 Some articles indicating concurrence with the principles of Widmar are: Toms and Whitehead, The Religious Student in Public Education: Resolving a Constitutional Dilemma, 27 EMORY L.J. 3 (1978); Note, The Rights of Student Religious Groups Under the First Amendment to Hold Religious Meetings on the Public University Campus, 33 RUTGERS L. REV. 1008 (1981); Gianella, Religious Liberty, Nonestablishment, and Doctrinal Develop- ment Part II: The Nonestablishment Principle, 81 HARV. L. REV. 513, 583 (1968). See also the discussion of Widmar in Loewy, School Prayer, Neutrality, and the Open Forum: Why We Don't Need a Constitutional Amendment, 61 N.C.L. REV. 141 (1982).

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