Missouri Baptist attorney recalls historic U.S. Supreme Court equal access ruling
By Don Hinkle
KANSAS CITY – He was only 31 years old and only six years out of law school, yet there he stood, in the same room with two titans of 20th century American jurisprudence.
Looking down from his bench at a young Kansas City attorney named Michael Whitehead, Chief Justice Warren Burger was presiding over the U.S. Supreme Court. Behind Whitehead sat famed Washington, D.C., attorney Archibald Cox, the former Solicitor General of the United States who served as special prosecutor in the Watergate case until he was fired in 1973 by the Nixon White House in what came to be known as the “Saturday Night Massacre.”
Holding forth with such august company on that October 1981 day could not have been more improbable for young Whitehead, except that it was the culmination of a series of historic legal twists and turns that would ultimately lead to a precedent-setting ruling by the high court.
Whitehead, now 58 and lead attorney for the Missouri Baptist Convention in its six-year-long legal battle to recover five breakaway agencies seized by renegade trustees, was at the U.S. Supreme Court on that Oct. 6 day to help his former law partner, then a 35-year-old native Texan, James M. Smart, Jr. Smart is now a judge for the Western District of the Missouri Court of Appeals in Kansas City. The two men were at the U.S. Supreme Court to argue a case known as Widmar v. Vincent.
“We were a two-man law office in Kansas City, specializing in whatever walked in the door,” Whitehead recalled. “Auto accidents, wills and trusts, dog bite cases. You walk in the door, you were our specialty.”
In 1977, what walked in the door were several Christian college students from the University of Missouri at Kansas City who were members of a group called Cornerstone. The students had held evangelical worship services on Saturday nights for four years in the student union. However, that same year, their application to use the facility was denied by Gary Widmar, dean of students, because of a 1972 policy adopted by the university prohibiting the use of campus facilities for religious worship or teaching. The school’s reasoning: To avoid an unconstitutional establishment of religion, and to avoid tax support, direct or indirect, for religious worship or teaching.
Smart, in solo practice in 1977, had tried to reason with university lawyers. They were willing to concede that government should accommodate private religious speech in the student union, but not religious worship. They insisted that religious worship is different from religious speech, and that tax-supported facilities could not be made available to the Cornerstone group for worship activities without violating the doctrine of “separation of church and state” embodied in the First Amendment Establishment Clause, as well as in the Missouri state constitution. Smart filed suit on behalf of the students in federal court in Kansas City in 1977. A year later Whitehead joined Smart to form their partnership.
Later that year, Federal District Court Judge William Collinson ruled against the students, citing the “no establishment of religion” clause in the First Amendment. He reasoned that speech that involves religious worship is not the same as other kinds of free speech. Government must censor or discriminate against religious worship speech if it occurs on government property. Otherwise, Collinson ruled, it would amount to indirect government financial support of religion, forbidden by the Establishment Clause.
Smart and Whitehead appealed to the U.S. Eighth Circuit Court of Appeals, who reversed Collinson in 1980. By a unanimous vote, the three-judge panel ruled that religious speech, like other speech, is protected by the First Amendment, and allowing “equal access” to the student union for religious and non-religious student uses did not violate the Establishment Clause. The university appealed the decision to the U.S. Supreme Court and on Feb. 23, 1981, a phone call and fax came into the Smart-Whitehead offices from the clerk of the Supreme Court telling them the high court would hear the case.
“I wasn’t even a member of the Bar of the Supreme Court yet,” Whitehead said. “Fortunately, Jim was, so he signed my application and moved for my admission.” Whitehead was admitted to the bar in a brief ceremony before cases were called the morning he and Smart presented their case.
“Motion granted,” intoned Burger, as Cox watched while waiting to move one of his young associates for admission to the court. “Mr. Whitehead, welcome to the Supreme Court,” Burger added.
Later that day, their hearing began, marking the culmination of years’-worth of work in preparing their brief for the justices to read and serve as the basis for the questions the justices would pose to Smart and Whitehead.
“There we sat, not 10 feet from the justices, so I just started to pray,” Whitehead recalled. “I was praying for victory –victory for the students, victory for religious liberty and victory for the sake of the Gospel. I smiled, because, there I sat, praying in a tax-supported courtroom! That violated the Establishment Clause, in the opinion of the university lawyers.”
According to his personal notes, here is what happened: Ted Ayers, attorney for the university, went first and read his prepared remarks. “This case involves a conflict between the religion clauses and the interests of public education,” he began.
Suddenly Burger interrupted: “The religion clauses? What about the entire First Amendment?”
Whitehead said he could immediately tell that Burger understood their legal argument that this case was mostly about free speech.
Ayers replied, “Well, Mr. Chief Justice, Cornerstone’s activities involve religious worship, not just speech.”
Justice William Rehnquist jumped in: “But wasn’t the University of Missouri before this Court just last year in a case involving the Gay Liberation Society? Didn’t we say that free speech and association clauses give them the right to meet on campus?”
Burger followed-up, “And I see in the briefs that you allow the Young Marxist League to meet on campus, and to speak against our democratic system of government.”
Rehnquist resumed, “So are you saying that only religious groups cannot meet on campus?”
Ayers replied that they can meet, “they just cannot engage in religious worship and teaching.”
Rehnquist countered: “Could Jerry Falwell be invited once per month to speak to the students at their meeting?”
Ayers answered, “Yes, your honor, he could come, but there could be some possible questions about his speech, depending upon the content.”
Whitehead thought to himself, “Depending on the content? Is anyone else thinking that this sounds like classic censorship language, unequal treatment based on content of speech?”
Again, Burger stepped in, “You referred to the ‘content,’ of Jerry Falwell’s speech, if he came on campus. When the state discriminates based on content, doesn’t that violate the Free Speech Clause?”
Ayers: “Religious content cannot be treated by the State the same as other kinds of speech, your honor. Otherwise, the Free Speech Clause would swallow up the Establishment Clause.”
This caught the attention of Justice John Paul Stevens, who spoke for the first time: “What about military chaplains? They are government officers engaged in leading religious speech and worship?”
Justice Lewis Powell joined in. “Does the university distinguish between worship in buildings as opposed to the campus lawn? Could Jerry Falwell be banned from a public park because his speech involves religious worship?”
“Cornerstone asked for regular meetings for religious worship, not a single use,” the university lawyer replied, trying to distinguish his case from the court’s examples.
Burger then noted how the Pope had recently held mass on the National Mall and that meeting was lawful, according to the high court.
“That may be a single event, but there are regular uses of the National Mall that involve religious expression,” Burger explained. “The national Christmas tree with crèche is on government property for an extended period.”
Justice Harry Blackmun, of Roe v. Wade fame, spoke for the first time, asking, “Are you troubled by prayer breakfasts with government officials, on government property? Are you concerned about daily prayer in Congress?”
Stevens jumped back into the questioning. “Regular use is not the issue here. The university policy prohibits a single use by Cornerstone for religious worship. It is not fair to say you are only prohibiting regular use.”
Burger then pointed to the frieze on the ceiling, a depiction of Moses resting the Ten Commandment tablets on his knees.
“Do you object to the Ten Commandments being regularly in this court room? That’s a religious symbol to some,” Burger said. “Does the university view of the Establishment Clause require us to take that down?” Whitehead joked that he was tempted to nudge Smart and suggest they waive oral argument, and quit while they were ahead.
“I felt we were winning by the power of prayer,” Whitehead teased. “Let’s don’t take any chances of losing it. But I kept my excited, nervous thoughts to myself.”
A green light atop the lectern glowed, letting the lawyers know they may speak. They do so until it turns red.
After Ayers is seated, Smart rose, stepped to the advocate’s lectern and the light turned green.
Justice Byron “Whizzer” White, a Rhodes Scholar and All-America running back at the University of Colorado, appointed to the court by John F. Kennedy immediately began peppering Smart with questions. He was concerned that the state was taking on a greater burden than it needed to. Why not just argue that the university is permitted to exclude religious worship as a matter of advancing its goal of strict church-state separation?
White expressed concern that a Catholic student group could invite a priest to come every week and conduct Mass in the student union. And then they could ask for space every day; and then for all day, every day. And the next thing you know the student union could be taken over by one religious group and used exclusively for religious worship.
Smart calmly explained that no private group should be permitted to dominate a public building. The problem, he argued, is not that the group is religious, but that it is private. If the Rotary Club took over a public building for its meetings, that would be an improper use of public funds. But that problem can be solved by administrative use policies that fairly allocate the uses among all groups, not by discriminatory bans on religious worship.
Justice Sandra Day O’Connor, her first week on the job, then asked: “If the government denial of space for your group attaches a stigma, would government allowance indicate approval of your group and its beliefs?”
No, Smart answered. The university allows many groups, and has a written disclaimer in its student catalog that denies sponsorship or endorsement of any group.
The first African-American to serve on the high court, Justice Thurgood Marshall, then thundered: “Many groups are not meeting weekly. This group wants to meet every week. Aren’t regular meetings different?”
The red light comes on. Smart sits down.
While university attorneys gave their rebuttal, Whitehead penned his prediction of how the justices will rule on a 3×5 card. He predicts victory by a 5-4, 6-3 or 7-2 margin.
Two months, two days later they get the court’s decision: They win by a vote of 8-1, with White as the lone dissenter. “Equal Access” is born.
Three years later Smart and Whitehead worked with the Christian Legal Society for bi-partisan congressional passage of the Equal Access Act, which applied the Widmar principle to public secondary schools. Nine years later the U.S. Supreme Court, by a 9-0 vote, upheld the Equal Access Act in the case of Mergens v. Omaha School District.
“Widmar v. Vincent fathered the doctrine of ‘equal access’ in religious speech cases,” Whitehead said. “For more than a quarter of a century, Widmar has born much fruit in a multitude of cases.”