In the case of Rosenberger v. Rector and Visitors of the University of Virginia, the plaintiff was the UVA student religious magazine Wide Awake, and later the petitioner before the U.S. Supreme Court.

Having no further recourse in the University of Virginia, Wide Awake magazine and Rosenberger asked the legal help of the Center for Individual Rights, which filed a lawsuit against UVA, under 42 U.S.C.

§ 1983,[3] in the United States District Court for the Western District of Virginia, which granted summary judgement to the University, ruling that denying student activities funding to Wide Awake was neither unconstitutional content-based discrimination, nor unconstitutional viewpoint discrimination, and that the University's interest in avoiding violating the Establishment Clause justified not subsidizing the magazine.

[4] Yet, the district court did not conclusively rule on the related question of whether or not the UVA subsidizing of the student religious magazine would violate the Establishment Clause of the U.S. Constitution.

The Court ruled that excluding the religious organization from school installations, whilst simultaneously permitting secular groups' use of the same place for a "wide variety of social, civic, and recreational purposes," constituted viewpoint discrimination that violated the First Amendment.

The University of Virginia Student Activities Fund (SAF) constituted a limited public forum, albeit "more in a metaphysical sense than in a spatial or geographic sense," yet "By the very terms of the SAF prohibition, the University does not exclude religion as a subject matter, but selects for disfavored treatment those student journalistic efforts with religious editorial viewpoints.

Because the University of Virginia will pay third-party printing costs for private speakers communicating their own messages, it may not "silence the expression of selected viewpoints."

In ancient Athens, and, as Europe entered into a new period of intellectual awakening, in places like Bologna, Oxford, and Paris, universities began as voluntary and spontaneous assemblages or concourses for students to speak and to write and to learn.

The quality and creative power of student intellectual life to this day remains a vital measure of a school's influence and attainment.

The prohibition on funding on behalf of publications that "primarily promote or manifest a particular belief in or about a deity or an ultimate reality," in its ordinary and commonplace meaning, has a vast potential reach.

And the term "manifests" would bring within the scope of the prohibition any writing that is explicable as resting upon a premise that presupposes the extistence of a deity or ultimate reality.

Justice O'Connor identified the difficult aspect of Rosenberger v. University of Virginia—it lies at the "intersection of the principle of government neutrality and the prohibition on state funding of religious activities.

"[10] She identified four considerations showing no Establishment Clause violation arising from UVA's potential endorsement of the religious message Wide Awake magazine might communicate.

Justice Thomas concurred with the Court majority's opinion, but separately published his historical explanation of the Establishment Clause principle that determined the Rosenberger v. University of Virginia judgment.

"[12] Thomas argued in the process that "Contrary to the dissent's suggestion, Madison's objection to the assessment bill did not rest on the premise that religious entities may never participate on equal terms in neutral government programs.

"Each issue of Wide Awake contained in the record makes good on the editor's promise, and echoes the Apostle's call to accept salvation ...

For Souter, the University of Virginia directly subsidized religion by paying third-party printing costs for Wide Awake magazine.