Abstract
I. EQUAL ACCESS: THE NEXT GENERATION A. The Receding Past It's taken some time to get the idea through their heads -- and of course some of them still just don't get it -- but maybe now, finally, recalcitrant lower court judges and civil libertarians will now come to accept a proposition that some of us thought obvious all along: The Establishment Clause does not authorize, and the Free Speech and Free Exercise Clauses do not permit , government discrimination against religious speakers or religious speech on the basis of religious content, viewpoint, or speaker identity -- ever. 1 For the past twenty-five years or so, the central legal issue at the intersection of free speech and religion has been the issue (or cluster of issues) that can generically be labelled "equal access." Do the religion clauses of the First Amendment require exclusion of religious speakers or groups from public fora (or "limited" public fora) or public benefits, solely on account of the religious content of their speech or purposes? The premise underlying the question was that the Establishment Clause might create an exception to usual First Amendment principles of freedom of speech when the speech (or speaker) in question is religious. Over approximately the last fifteen years, marked from the date of the pivotal case of Widmar v. Vincent , 2 that premise has been repeatedly and decisively rejected in a series of Supreme Court decisions, including two in the 1994-95 Term. Rosenberger v. ...