Keegan v. University of Delaware

• Decision Date: 30 October 1975
• Parties: William F. KEEGAN and Michael Szupper, Defendants-Appellants, Thomas J. Mardaga et al., Intervenors-Appellants, v. UNIVERSITY OF DELAWARE, Plaintiff-Appellee. . On Reargument
• Court: United States State Supreme Court of Delaware

Page 14

349 A.2d 14

William F. KEEGAN and Michael Szupper, Defendants-Appellants, Thomas J. Mardaga et al., Intervenors-Appellants, v. UNIVERSITY OF DELAWARE, Plaintiff-Appellee.

Supreme Court of Delaware.

On Reargument Oct. 30, 1975.

Decided Nov. 12, 1975.

Upon appeal from Court of Chancery, Reversed and remanded.

Arlen B. Mekler, Wise & Mekler, Wilmington, for defendants below, appellants.

James P. Collins, Healy & Collins, Wilmington, for intervening defendants below, appellants.

John P. Sinclair, Potter, Anderson & Corroon, Wilmington, and Philip B. Kurland, Donald E. Egan and Alan L. Unikel, Rothschild, Barry & Myers, Chicago, Ill., for plaintiff-appellee.

John S. Grady and Thomas Stephen Neuberger, Bader, Dorsey & Kreshtool, Wilmington, and Christopher Hall, San Bernardino, Cal., for amicus curiae.

Before McNEILLY, J., QUILLEN, Chancellor, and STIFTEL, President Judge.

McNEILLY, Justice:

This is an appeal from a decision of the Court of Chancery granting plaintiff, University of Delaware, summary judgment and a permanent injunction against defendants, priests and intervening University students, prohibiting religious worship services in a commons room of the dormitory in which the students live. The pertinent facts and history of this case are succinctly stated in the Court's opinion, 318 A.2d 135 (1974). We emphasize, however, that we are dealing with a very particular factual situation involving a University campus dormitory.

The University contends that the Establishment Clause of the First Amendment, made applicable to the States by the Fourteenth Amendment, supports and requires the ban of all religious worship services from campus facilities. The priests and students contend that the strict enforcement of the University's policy is an infringement upon the Free Exercise Clause of the First Amendment. ¹

The Vice-Chancellor reasoned that although allowance of services in the University dormitory need not offend the Establishment Clause, the University's policy did not demonstrate a substantial infringement upon the priests and students' right to the free exercise of religion.

As we see the case, there are three issues. First, would the abolition of the present University policy prohibiting religious worship in the campus dormitory run afoul of the prescribed tests for violation of the Establishment Clause of the Federal Constitution? Second, does the University policy constitute a legally recognizable burden on the students' Constitutional right to freely exercise their religion? Third, if the students' right to freely exercise their religion is legally burdened, is such burden justified by a compelling State interest?

The matter is now before the Court for decision after full argument and, as to the second issue only, reargument. This opinion constitutes the decision of the Court and supersedes prior opinions.

We concur with the Vice-Chancellor's rationale in concluding that abolition of present University policy towards religious worship in the commons room of the dormitory need not run afoul of the prescribed tests for establishment violations, i.e., would not have an effect that primarily advances religion, would not reflect a sectarian legislative purpose, and would not foster excessive government entanglement with religion. See Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971); Committee for Public Education v. Nyquist, 413 U.S. 756, 93 S.Ct. 2955, 37 L.Ed.2d 948 (1973). To allow religious worship groups the same rights and privileges attendant with the use of the commons room of the dormitory as are accorded other group activities could reflect a lawful accommodation. Zorach v. Clauson, 343 U.S. 306, 72 S.Ct. 679, 96 L.Ed.2d 954 (1952); Abington School District v. Schempp, 374 U.S. 203, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1953).

Thus, we hold that the University cannot support its absolute ban of all religious worship on the theory that, without such a ban, University policy allowing all student groups, including religious groups, free access to dormitory common areas would necessarily violate the Establishment Clause. The Establishment cases decided by the United States Supreme Court indicate that neutrality is the safe harbor in which to avoid First Amendment violations: neutral 'accommodation' of religion is permitted, Everson v. Board of Education, 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711 (1947); Zorach v. Clauson, supra, while 'promotion' and 'advancement' of religion are not. McCollum v. Board of Education, 333 U.S. 203, 68 S.Ct. 461, 92 L.Ed. 649 (1948); Abington School District v. Schempp, supra. University policy without the worship ban could be neutral towards religion and could have the primary effect of advancing education by allowing students to meet together in the commons room of their dormitory to exchange ideas and share mutual interests. If any religious group or religion is accommodated or benefited thereby, such accommodation or benefit is purely incidental, and would not, in our judgment, violate the Establishment Clause. Tilton v. Richardson, 403 U.S. 672, 91 S.Ct. 2091, 29 L.Ed.2d 790 (1971). The commons room is already provided for the benefit of students. It is not a dedication of the space to promote religious interests. Therefore, in regard to the Establishment Clause, we agree with the view taken by the Court of Chancery.

The second issue presents us with more difficulty largely due to the words of degree frequently, and perhaps necessarily, employed by the United States Supreme Court. But it appears to us that the Vice-Chancellor applied the wrong test in the portion of his opinion on the Free Exercise Clause. While it is true that the opinion of the Court in Sherbert v. Verner, 374 U.S. 398, 406, 83 S.Ct. 1790, 1795, 10 L.Ed.2d 965 (1963) noted a 'substantial infringement of appellant's First Amendment right', it did not indicate that this finding constituted the legal standard for the appellant's burden. Quite to the contrary, the Court, citing Braunfeld v. Brown, 366 U.S. 599, 607, 81 S.Ct. 1144, 6 L.Ed.2d 563 (1961), quoted the following language at 374 U.S. 404, at 83 S.Ct. 1794:

'If the purpose or effect of a law is to impede the observance of one or all religions or is to discriminate invidiously between religions, that law is constitutionally invalid even though the burden may be characterized as being only indirect.'

Similarly, the opinion of the court in Sherbert, at 374 U.S. 403, at 83 S.Ct. 1793, said that, if the State action is to be upheld:

'it must be either because (it) represents no infringement by the State of (appellant's) constitutional rights of free exercise, or because any incidental burden on the free exercise of appellant's religion may be justified by a 'compelling state interest in the regulation of a subject within the State's constitutional power to regulate . . .' NAACP v. Button, 371 U.S. 415, 438, 83 S.Ct. 328, 341, 9 L.Ed.2d 405, 421.'

Thus, it seems to us that, while the Court in Sherbert thought the situation there demonstrated a 'substantial infringement' of religious freedom, even an 'incidental burden' on the free exercise of religion must be justified by a 'compelling state interest'. Once the individual demonstrates some Constitutional burden, whether substantial or incidental, direct or indirect, upon his free exercise of religion, the State must show a 'substantial interest' sufficient to sustain its acts. Johnson v. Robison, 415 U.S. 361, 384--386, 94 S.Ct. 1160, 39 L.Ed.2d 389 (1974); Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972); Gillette v. United States, 401 U.S. 437, 462, 91 S.Ct. 828, 28 L.Ed.2d 168 (1971); Sherbert v. Verner, supra; Braunfeld v. Brown, supra.

We recognize, as the University has argued on reargument, that there is nothing fixed or permanent about catch phrases in the judicial opinions cited above and that such words as 'indirect' and 'incidental' can refer to the relationship between the state action and its effect on the individual as well as to the severity of the burden on the individual. It is of course necessary to examine each factual situation.

But, if the burden is examined on the facts in this case, one must conclude it rises to a legally recognizable interest on the part of the students. The only activity proscribed by the regulation is worship regardless of whether one considers the proscription a direct or indirect burden on student activity. The commons area is already provided for student use and there is no request here that separate religious facilities be established. The area in question is a residence hall where students naturally assemble with their friends for many purposes. Religion, at least in part, is historically a communal exercise.

It may be that every class division involving religion would not constitute a burden in the Constitutional sense on the free exercise of religion. Johnson v. Robison, supra. ² It may be that this case can be viewed as the mere denial of an economic benefit. Indeed, it can be argued, as it has been, that the question is whether the University must permit the students to worship on University property. But, in terms of religious liberty, the question is better put, in our judgment, from the perspective of the individual student. Can the University prohibit...