OPINION OF THE COURT
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 

¹   The First Amendment in its pertinent part reads as follows: 'Congress shall make no

law respecting an establishment of religion, or prohibiting the free exercising thereof; . . .'

 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.

[1] 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).

[2] 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.

[3] 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

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 student worship in a common area

of a University dormitory which is provided for student use and in which the University permits every

religion in the sense of the Sherbert case.

94 S.Ct. 1160, the Court felt the possible absence of burden was due to the relative

benefits the challenged

legislation had granted to conscientious objectors.

Justice Douglas' concurrence in Sherbert v. Verner, supra, 374 U.S. at 412, 83 S.Ct. at

1798 that 'the Free Exercise Clause is written in terms of what the government cannot do

to the individual, not in terms of what the individual can exact from the government.'

This case is also far different from a demand by supporters of religious schools for state

financial support. Brusca v. Missouri ex rel. State Board of Education, 332 F.Supp. 275

(E.D.Mo.1971), affirmed, 405 U.S. 1050, 92 S.Ct. 1493, 31 L.Ed.2d 786 (1972).

Even in Johnson v. Robison, supra, where the impact of the statute, denial of veteran education

benefits to alternative civilian service conscientious objectors, was less direct on religious exercise

than the impact of the regulation here, the Court took care to find the Government's 'substantial

interest' was sufficient to sustain the challenged legislation. Thus, even there, the Court, for its

decision, reached what we have designated the third issue in this case.

Counsel have agreed that this case is unique and precise precedents have not been supplied. While we

recognize that different considerations may be involved under various Constitutional provisions, the

varying nature of the legal proceedings, and varying factual situations, we nonetheless find some

support for our views in two cases noted in the briefing and orally argued at re-argument by counsel

for amicus curiae. In Tucker v. Texas, 326 U.S. 517, 66 S.Ct. 274, 90 L.Ed. 274 (1946), a freedom of

press and religion case, the Supreme Court upheld the right of an ordained minister of Jehovah's

Witnesses to distribute religious literature in a village owned by the United States, notwithstanding a

request to leave by the manager of the village pursuant to his purported authority by federal regulation

and Texas criminal law. The Court noted the village 'had the characteristics of a typical American

town.' The case thus has similarities to the University owned dormitory situation here. Similarly, in

Healy v. James, 408 U.S. 169, 92 S.Ct. 2338, 33 L.Ed.2d 266 (1972), it was held that a state

supported college could not deny official recognition to student groups without justification, for such

a denial would abridge the First Amendment rights of individuals to free expression and free

association. At the outset, the opinion noted that 'state colleges and universities are not enclaves

immune from the sweep of the First Amendment.' 408 U.S. at 180, 92 S.Ct. at 2345.

We also note the following language from Wisconsin v. Yoder, supra, 406 U.S. at 220--221, 92 S.Ct.

at 1536.

'The Court must not ignore the danger that an exception from a general obligation of citizenship on

religious grounds may run afoul of the Establishment Clause, but that danger cannot be allowed to

prevent any exception no matter how vital it may be to the protection of values promoted by the right

of free exercise.'

We think these conclusions in Yoder in regard to right of free exercise are worthy of weight here.

Finally, on the second issue, we do not think the cases of Stein v. Oshinsky, 348 F.2d 999 (2d Cir.

1965) and Hunt v. The Board of Education, 321 F.Supp. 1263 (S.D.W.Va.1971) dictate a different

result than the conclusion we reach here. The Vice-Chancellor was careful to distinguish these cases,

and we think he did so correctly. The Stein case upheld the prohibition of a voluntary prayer by

kindergarten children in a classroom setting. The situation there approached a state sanctioned prayer

imposed on children of an impressionable age supported by teacher supervisors. The Hunt case, while

lacking the coercive situation found in Stein, still involved commuting high school students meeting

voluntarily in classrooms or other premises of a high school. Neither case involved activity by adult

residents of a living complex in common areas generally set aside for the benefit of such residents.

 [4] We conclude that the regulation involved here has, in this factual context, both the

purpose and the effect of impeding the observance of religion and thus constitutes a legal burden on

the students' Constitutional right to freely exercise their religion.

[5] Since the state policy here impedes the observance of religion and acts as a prior restraint

upon all religious worship, as opposed to all other activities, and thus constitutes legal burden upon

the students' Constitutional rights, it requires a showing of a compelling state interest for justification.

Sherbert v. Verner, supra. We therefore reach the third issue in the case. The State was not called

upon to offer justification nor was any shown. The Vice-Chancellor erred in holding that the students

had not shown the requisite infringement on their free exercise rights and in not demanding an

prohibition can be justified on any basis, including a secular purpose to avoid excessive

government entanglement by a State University with religion.

Reversed and remanded for further proceedings consistent with this opinion.

Back to Representative Cases

Home  Website Directory   Practice Categories & Staff
Bar Admissions & Representative Cases  
  Education, Published Works & Seminars Taught
Honors, Professional Associations & Memberships