The Enduring Legacy of Rosenberger

A long-shot victory continues to generate impressive returns

Thirty years ago, CIR pulled off an improbable 5-4 victory in the Supreme Court that overturned a seemingly entrenched constitutional doctrine restricting free speech and religious liberty. That story is worth recounting today, not only because it reminds us that similar long-shot cases can be won, but because it also demonstrates how strategic litigation can generate continuing victories for decades to come.

From small disputes …

In late 1990, Ronald Rosenberger and two other students at the University of Virginia (UVA) started a magazine discussing issues from a Christian perspective. A mandatory student activity fee funded student-run clubs and organizations, including publications, so the editors of Wide Awake applied for $5,862 to cover its publication costs. They didn’t get a penny. UVA denied funds for any “activity [that] promotes or manifests a particular belief in or about a deity or ultimate reality.”

Ron and his colleagues saw this for what it was: government hostility to religious speech. As UVA later confirmed, it would fund the promotion of all other beliefs and political positions, except for religious viewpoints. The students pledged to fight this discrimination.

That’s when CIR stepped in. After an appeal within UVA failed, CIR filed suit in federal trial court, where it lost. CIR then enlisted the nation’s foremost religious liberty scholar, law professor Michael McConnell, as its advocate. Yet again, it lost in the federal appellate court, which ruled that a “strict separation of church and state” was required and that even neutrality in student funding could be seen as endorsing a particular religious viewpoint.

This aversion to religious-oriented speech was common, even required, by a series of wrongheaded Supreme Court rulings. Those decisions held that the constitutional ban on establishing a government religion required a “high wall” or “strict” separation of church and state such that “no aid” could ever flow from government to a religious entity. Two cases chipped away at this high wall, but UVA argued that the “no aid” rule prohibited even neutral funding decisions.

When the Supreme Court agreed to hear the case, a battle of titans ensued. The bench was hot, and most observers thought a landmark ruling would follow. Justices Antonin Scalia and Anthony Kennedy had hammered UVA’s advocate, a member of the UVA Law School faculty. His position that UVA only barred funds for religious activity was untenable if that activity was speech. CIR’s then executive director, Michael Greve, wrote in the Spring 1995 Docket Report that the decision “may become the most significant religion case of the decade.”

And yet, when the Court announced its decision on July 27, 1995, it was a narrow 5-4 victory for the Wide Awake editors, with Justice Sandra Day O’Connor writing a handwringing concurrence that limited the holding to its facts. Even so, Greve quipped in the next Docket Report that he was confident that the “principle of neutrality will prevail over … artless, implausible qualifications” in the long run.

Over 1,609 citations and counting

Greve was right, but he may have still underestimated the legal revolution that Rosenberger unleashed. As the graph below shows, Rosenberger has been cited in more than 1,609 published judicial rulings, including 57 by the Supreme Court. Eleven of the High Court cases are particularly significant. As the graph also shows, this impact did not trail off after a few years. If anything, it has increased in recent years, owing in part to its relevance to campus speech debates.

And Rosenberger has had wide-ranging implications beyond the rights of campus religious groups. The Supreme Court has relied on Rosenberger to end many other viewpoint speech restrictions and make government funds equally available to all comers. The first follow-on case was in 1997, when the Court ruled that federal aid for disadvantaged students could flow to students in religious schools.

In 2002, the Court took an even bigger leap when it ruled that states could include religious schools in their K-12 choice programs. The school choice movement had long been hampered by the argument that the “no aid” rule prohibited religious school participation. But Rosenberger established that distributing student funds equally to all comers was not an endorsement of religion.

And in 2020, the justices used the Rosenberger principle to strike down a state constitutional ban on funding religious institutions, even on a neutral basis, in its school choice program. Many similar anti-religious state amendments fell as a result.

Just over 30 years ago, there was a deeply entrenched legal consensus that barred these advances. Since Rosenberger, that consensus has faded from our memory. Not all CIR cases have such significant impacts, but it is the nature of strategic litigation that landmark wins can continue to deliver unexpected benefits for decades.

Current law professor—and CIR donor—Michael Greve put it best: “We thought Rosenberger had the potential to be one of the biggest cases of the 1990s, but it’s gratifying to see that its logic has changed constitutional law deeply and continues to influence the law today.”

This article originally appeared in the Fall 2025 edition of CIR’s Docket Report. Read the full publication here.