\u27Mergens v. Westside Community Schools\u27 at Twenty-Five and \u27Christian Legal Society v. Martinez\u27: From Live and Let Live to My Way or the Highway?

The United States Congress passed the Equal Access Act (EAA)1 and forwarded it to President Ronald W. Reagan, who signed it into law on August 11, 1984.2 The EAA was enacted in response to Widmar v. Vincent, 3 a 1980 Supreme Court case from higher education where the Justices ushered in a renaissance of sorts in religious liberty. In Widmar, treating religious expression as a subset of free speech,4 the Court ruled that officials at a state university in Missouri could not deny a Christian group access to institutional facilities so long as the university permitted other organizations to meet on their campus.5 Subsequently, Congress, via the EAA, expanded the reach of Widmar’s rationale by mandating that officials in public secondary schools6 receiving federal financial assistance must also allow noncurriculum related student groups7 to meet during non-instructional time. Twenty-five years ago, in Mergens v. Westside Community Schools, 8 the Supreme Court upheld the constitutionality of the EAA. The Court found that Congress intended that insofar as most high school students could recognize that allowing religious clubs to function in public schools did not imply the endorsement of religion, the law should remain in place.9 However, because only a plurality of Justices agreed that the EAA passed the Establishment Clause analysis, the Court left the door open to more litigation, leading to a line of cases considering the extent to which religious expression may be treated as a protected subset of free speech in school settings.1