Brief Filed in Colorado Student Aid Case

The CLS Center filed its opening appellant's brief September 12 in the Tenth Circuit in Colorado Christian University v. Baker, a case involving Colorado's discrimination against students attending seriously religious colleges and universities.

Like most states, Colorado has created various programs designed to help students and their families cover the cost of a college education. Students are permitted to direct their aid to virtually any institution of higher education in the state. However, the state statutes creating the programs exclude students attending "pervasively sectarian" schools. Through a subjective and intrusive process, the Colorado Commission on Higher Education decided that Colorado Christian University (CCU) was "pervasively sectarian," thereby denying aid to otherwise eligible students at the school.

In December 2004, CCU filed a civil rights lawsuit in federal court, asserting that the state's discrimination against it and its students violated the Free Exercise Clause, the Establishment Clause, and the Equal Protection Clause. In May 2007, the district court granted the state defendants' summary judgment motion. CCU appealed, and filed its opening brief on September 12.

Among the groups who joined "friend of the court" briefs supporting CCU were the United States, the National Association of Evangelicals, the American Association of Presidents of Independent Colleges & Universities, the Council for Christian Colleges & Universities, the Becket Fund, and the American Center for Law & Justice.

Representing CCU along with the CLS Center are Eric V. Hall and L. Martin Nussbaum of Rothgerber Johnson & Lyons, LLP; Thom Scheffel of Thomas N. Scheffel & Associates, PC; and attorneys with the Alliance Defense Fund. ADF has also provided financial support of the legal work done in this case.

Academic Media Suggests CLS is Prevailing in Campaign Against Discriminatory University Student Organization Rules

A September 17th article by by Scott Jaschlik of Inside Higher Ed (http://www.insidehighered.com/) has as its context a Second Circuit decision affirming that a state-run college may constitutionally put the kibosh on Greeks on campus. But it is the subtext of the article that we found intruiging - that Christian Legal Society and similar religious liberty advocacy groups are making headway with the academy in their campaign to establish that prohibiting a religious student group from "discriminating" in membership on the basis of religion is in fact religious discrimination.

For some reason, Jaschlik closely links the issues in Chi Iota Colony v. City University of New York to the ongoing debate over whether universities may condition registration for student organizations -and the benefits that accompany same - on agreeing not to restrict membership on the basis of religion, creed and/or sexual orientation. See, e.g., Christian Legal Society v. Walker, 453 F.3d 853 (7th Cir. 2006); Christian Legal Society v. Kane, 2006 WL 997217 (N.D. Cal. May 19, 2006). One wonders why, as the cases have little resemblance; Chi Iota involved a fraternity's claim of intimate association as against a gender discrimination policy, not expressive association involving the highly protected status of religious belief and association. But "Public colleges' anti-bias policies have been taking a beating in the courts in recent years," Jaschlik writes. "Many lawyers who advise colleges... have urged colleges to recognize that the force of their anti-bias policies has been severely weakened." The "emerging conventional wisdom" among university administrators, he reports, is that "Students' First Amendment rights of freedom of religion and expression will end up trumping strong anti-bias principles."

We hope so, at least where it comes to sincerely religious groups who know that defining and perpetuating their religious message depends on selecting leaders and members who agree with its views. University officials who are looking to Chi Iota to "challenge" the "conventional wisdom," as Jaschlik reports, may look for encouragement for their unconstitutional views where they like, but when most public colleges and universities that have tried to exclude CLS and similar groups simultaneously sponsored Greek systems - and the Chi Iota decision does not call into question their constitutional authority to embrace Greek life if they choose to - the Second Circuit's decision seems to offer shaky support to those who would shore up an increasingly untenable double standard for Greek and religious student groups.

The Constitution and America as a "Christian Nation"

A majority of Americans believe that "the U.S. Constitution establishes a Christian nation," according to a survey done by the First Amendment Center. Thirty-eight percent of respondents "strongly agreed" with that statement, and 17% "mildly agreed."

What should one make of this? Why do a majority of Americans seem to believe something that is so clearly wrong?

I suppose it's possible that at least some respondents didn't understand the question. Part of the problem may stem from the fact that the question posits something undefined. More specifically: what would it actually mean for the U.S. Constitution to "establish" a "Christian nation"? What exactly is a "Christian nation"? How would a constitution "establish" such a nation?

The question seems to presuppose that the Constitution established our nation. It did not. To the extent any document can be said to have established our nation, that document is the Declaration of Independence. The Constitution does not even purport to "establish a nation." The Constitution, more than anything else, is about the nature, structure, and limits of the national government. To be sure, a constitution typically both reflects and shapes the character of a nation, but our Constitution didn't establish our nation -- Christian or otherwise.

What does it mean to be a "Christian nation"? The answer to that question is far from self-evident. Does it mean that a majority of the nation's people consider themselves to be Christian? If that's all that it takes, how would a document like the Constitution ensure that the nation remained Christian? By giving power to the government to expel enough non-Christians so that at least 51% of the population professed faith in Christ? By giving government the responsibility and power to evangelize? Surely this is not what the survey respondents meant when they stated their agreement with the proposition that the Constitution establishes a Christian nation. I sure hope that's not what they meant.

Perhaps being a "Christian nation" means that Christianity and Christian people are somehow privileged, particularly in their relationship with the government? If that's what the phrase means, to say that the Constitution "establishes a Christian nation" is to say that the Constitution explicitly confers such privileges upon Christians and Christianity. But it plainly does not. Indeed, in at least one place, Article VI, Section 3 of the Constitution explicitly forbids the national government from requiring someone to embrace a particular religion as a requirement for serving in the national government. Less explicitly, but not less powerfully, the First Amendment denies government the power to do all kinds of things it might do to "establish" and maintain a "Christian nation." And that is surely a good thing.

Our Constitution limits the power of government when it comes to religion. It presupposes that the church and the state are distinct institutions -- something that was not always the case in Western history. It also prevents the federal government from establishing a national church. It also limits government power to regulate religious exercise and speech. The common theme running through all these realities is religious freedom -- government minimizing its influence on religious choices. That the Constitution guarantees this is a cause for celebration. That the Constitution does not "establish a Christian nation" -- whatever that means -- is not a defect in the document.

Deconstructing Hein: Federal Government, Faith-Based Provider and ACLU Offer Different Readings in Laskowski v. Spellings

The Supreme Court strives to provide clear guidance to the lower federal and state courts through its opinions. When a case results in a fractured plurality, however, the Court can't be faulted for lack of trying. A recent case in point is Hein v. Freedom From Religion Foundation, 2007 WL 1803960 (June 25, 2007), a case widely viewed as offering the first definitive pronouncement on Establishment Clause taxpayer standing in twenty years. (See CLRF's blog post regarding the Hein decision here.) But the debate about the meaning of the case among the parties to a similar Seventh Circuit case that was GVR'd for Hein, Laskowski v. Spellings, 443 F.3d 930 (7th Cir. 2006), brings to mind the proverbial trio of blind men describing an elephant.

Laskowski is a taxpayer action brought against the Secretary of Education challenging a congressional earmark of $500,000 to the University of Notre Dame. The university intervened to defend the grant. The Seventh Circuit held the action moot with respect to the claim against the Secretary because the grant had expired, but ruled that the case could go forward as an equitable restitution action for recoupment against the university. This holding and the Seventh Circuit's holding in Hein that taxpayers could bring suit challenging purely discretionary Executive expenditures were a double-barrelled expansion of taxpayer standing that might have significantly broadened the availability of taxpayer claims if they had gone unaddressed by the Supreme Court. After the GVR, the Court of Appeals ordered the parties's counsel to brief the applicability of Hein to the case. Experienced counsel for the Justice Department, the ACLU of Indiana and Notre Dame (Michael Carvin of Jones Day) offered somewhat divergent views of the meaning of Hein to guide the court in their submissions in late July.

To the Justice Department (still participating in order to defend the Secretary from charges of acting unconstitutionally, a necessary predicate to establishing that the equitable remedy of recoupment was caled for), Hein requires dismissal because the question remaining before the court -- whether Notre Dame reasonably relied on the Secretary's authority - "[has] nothing to do with any exercise by Congress of its taxing and spending power." Moreover, Justice argues, Hein counsels that there can be no claim for recoupment that can be stated by a taxpayer, since "Establishment Clause taxpayer standing under Flast is not based on any notion that a taxpayer has an individual Article III stake in recovering money spent in violation of the Establishment Clause."

Notre Dame's argument is simpler and more direct. Carvin argues that Hein offers sufficient guidance for the Court of Appeals to simply affirm the District Court's original dismissal of the case. The recoupment remedy revived by the Seventh Circuit from hoaried dicta in Establishment Clause jurisprudence is a "dramatic expansion of taxpayer standing," the university argues, and hence goes well beyond the standing afforded by Flast v. Cohen. What's more, since the Secretary retained the discretion not to award the earmark to Notre Dame, "the plaintiffs do not challenge congressional action at all, but Notre Dame's alleged use of federal funds in violation of Executive regulations."

The plaintiffs are predictably dismissive of Hein's application. "The only relevance the decision in Hein has to this case is that Hein reaffirmed the validity of federal taxpayer standing, first noted in Flast v. Cohen, to challenge expenditures expressly authorized by a specific congressional enactment pursuant to Congress' power to tax and spend under Art. I, Sec. 8...." Because the taxpayers challenge a directed "teacher quality initiative" grant made pursuant to a specific appropriation under the Higher Education Act, Flast and Hein are satisfied, plaintiffs contend.

Notre Dame's argument on this point may end up carrying more weight than it might appear at first blush. The Supreme Court has strongly signaled that it is interested in Article III cases of late, having decided Hein in this past term and DaimlerChrysler Corp v. Cuno, 126 S.Ct. 1854 (2006), last year. If the Seventh Circuit disagrees with Notre Dame and holds that recoupment of unconstitutionally spent funds passes muster under Hein despite that it is not the congressional appropriation per se that is challenged, but how the money was actually spent by the grantee, it may be inviting further review.

Oral argument is set for November 5, 2007.