Kentucky Supreme Court Takes Blaine Amendment Case

The Kentucky Supreme Court has taken Pennybacker v. Beshear, a case involving a Blaine Amendment challenge to a state grant to a Christian university. The Kentucky legislature appropriated $11 million for a new pharmacy school at the University of the Cumberlands, a liberal arts institution affiliated with the Kentucky Baptist Convention. Strict separationist taxpayers sued, claiming that the proposed expenditure violated the state constitution. The trial court agreed, and the University and stated appealed to the Kentucky Court of Appeals. They simultaneously asked the Kentucky Supreme Court to take up the case immediately, without waiting for the Kentucky Court of Appeals to rule. This past Thursday, the state high court agreed. The CLS Center represents the University in this case.

Prof. Garnett on "Excluding Religion"

Professor Rick Garnett of Notre Dame has prepared a critical response to "Excluding Religion," an article in which Professor Nelson Tebbe argues that government may sometimes selectively exclude religion from its support programs.

One of the CLS Center's primary objectives is to establish that the Constitution generally forbids governments (especially state governments relying upon "Blaine Amendments") from selectively excluding religion from social service and education support programs. We welcome Prof. Garnett's contribution to the scholarly literature on this subject.

"Colorado officials failed to keep faith with Constitution"

Quin Hillyer writes a substantial opinion piece on the CCU v. Weaver decision in today's edition of The Examiner.

CCU v. Weaver victory featured in DOJ Religious Freedom in Focus

The Department of Justice's July/August issue of Religious Freedom in Focus highlights the Center's victory in CCU v. Weaver as well as the DOJ's amicus brief in favor of CCU.

State announces that it will not appeal Tenth Circuit decision in Colorado Christian University v. Weaver

In a press release the Colorado Department of Higher Education announced that the Colorado Commission on Higher Education will not appeal the Tenth Circuit Court of Appeal's decision in Colorado Christian University v. Weaver. The 10th Circuit ruled that the state's exclusion of CCU students from financial aid because of the school's religious identity was unconstitutional.

From the press release:

Colorado Solicitor General Dan Domenico, who argued the State's case, remarked, "As we were obliged to do, we presented the strongest case we could to the court. The court has now made clear, though, that Colorado's law is outdated and must be changed. We are glad that the CCHE has agreed with our recommendation not to ask the Supreme Court to overturn this decision, and we look forward to working with interested parties to craft a solution that complies with the court's decision."

Also see the August 1 Rocky Mountain News story covering the state's announcement.

Another Editorial Applauding 10th Circuit Decision in CCU Case

A house editorial in Pennsylvania's Reading Eagle applauds the Tenth Circuit's decision in the CCU case.

News roundup and scholarly commentary on Colorado Christian University v. Weaver victory

(Click here for the CLS Center's background and summary of the case along with the Tenth Circuit opinion and briefs of the parties and of amici curiae.)

Oglethorpe Univ. Prof. Joseph M. Knippenberg for First Things: Unfortunately, those efforts put the Colorado government in the business not only of closely scrutinizing religious doctrine and institutions but also of discriminating between denominations and institutions on the basis of their relative “sectarianism.” It’s hard to imagine two activities more at odds with the values inherent in the First Amendment religion clauses. (Well, not really: there are religious tests for office-holding, not to mention persecution, though Colorado was surely approaching the former in conditioning eligibility for student aid on the character of an institution’s professed religiosity.)

Notre Dame Law Prof. Rick Garnett on Mirror of Justice (Roman Catholic legal theory blog): Here's the key sentence: We find the exclusion unconstitutional for two reasons: the program expressly discriminates among religions without constitutional justification, and its criteria for doing so involve unconstitutionally intrusive scrutiny of religious belief and practice. More later ....

Univ. of Toledo Law Prof. Howard Friedman on Religion Clause Blog: In an important decision interpreting the scope of the Supreme Court's 2004 Locke v. Davey decision, yesterday the 10th Circuit Court of Appeals held that Colorado acted unconstitutionally in excluding from its college scholarship program students who attend "pervasively sectarian" institutions.

Howard J. Bashman on How Appealing (appellate law blog) provided early coverage of the opinion and early news articles.

Editorial of the Colorado Springs Gazette: It's shocking that state oficials needed a federal court to tell them not to discriminate on the basis of religion.

Joey Bunch for the Denver Post: Court: Colorado financial aid ban unconstitutional

Justin Pope for the Associated Press (AP): Another courtroom victory for religious colleges

Colorado Christian University Tenth Circuit decision available

To follow up Casey's earlier post, the Tenth Circuit Court of Appeals has posted the unanimous, published opinion in favor of Colorado Christian University, authored by Judge McConnell and joined by Judges Seymour and Holmes, reversing the district court's opinion.

Kentucky School Funding Case Update

Readers may remember that CLS's Center for Law & Religious Freedom represents the University of the Cumberlands (UC) in a challenge to its receipt of state funding to build a pharmacy school building. Strict separationists argued that the appropriation violated provisions of the Kentucky constitution governing church-state relations. UC got in their sights after the school took action against a student who had violated its conduct policy -- which the student had agreed to follow. (The male student wrote, on a social networking site, about waking up next to his boyfriend.)

On March 6, the Circuit Court in Franklin County ruled that the appropriation for the pharmacy building violated two church-state provisions of the Kentucky constitution. The court also ruled that the legislature's creation of a scholarship program for pharmacy school students violated a provision of the state constitution regarding the procedures for appropriations.

On March 31, UC appealed to the Kentucky Court of Appeals. On April 10, we asked the Kentucky Supreme Court to directly review the trial court's decision, without an intervening Court of Appeals decision.

Briefing Complete in CO Student Aid Case

Briefing is complete in Colorado Christian University v. Baker now that the CLS Center filed a reply brief on behalf of CCU in the U.S. Court of Appeals for the Tenth Circuit.

Colorado takes away state student aid from otherwise eligible economically disadvantaged students who choose universities the state deems "pervasively sectarian." In other words, if a poor high school senior chooses a public university, a thoroughly secular college (e.g., Colorado College), or a "less religious" university (e.g., Regis University), he or she keeps his or her aid. But if he or she chooses CCU, aid is revoked -- no matter what sort of degree the student plans to earn.

In the lawsuit, CCU alleged that the state violated the Free Exercise and Establishment Clauses of the First Amendment, as well as the Equal Protection Clause of the Fourteenth Amendment. The district court disagreed, and CCU appealed.

Eric V. Hall of Rothgerber Johnson & Lyons LLP and I prepared the brief. We expect oral argument to occur in May or September.

Public School Teachers' Unions Don't Want Competition

More evidence that public school teachers' unions simply don't want competition: they recently filed a friend of the court brief arguing that states should have the power to discriminate against parents and students who choose religious schooling.

The state of Colorado provides higher ed tuition assistance to eligible students. There's a catch, though: if a student and his or parents choose a college that the state has deemed "too religious," then the assistance is revoked. Represented by the CLS Center, Colorado Christian University challenged this discriminatory system in court.

In an amicus brief filed earlier this month, the public school establishment (the National Education Association, the Colorado Education Association, the National School Boards Association, and the National Parent Teacher Association) once again demonstrated its opposition to educational choice and genuine religious freedom.

Why are they opposed to choice in education? According to their own "statement of interest" in the brief, they believe that giving parents and students choice might threaten public (i.e., government-run) schools -- meaning the interests of the public school teachers' unions and their members.

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.

Ruling Soon in Student Aid Case?

U.S. District Court Judge Marcia S. Krieger appears to be poised to rule on cross-motions for summary judgment in Colorado Christian University v. Weaver, a case challenging various Colorado statutes denying state student aid to students attending "pervasively sectarian" schools. The state deemed Colorado Christian University (CCU) to be pervasively sectarian. Its students are ineligible for aid without regard to what they major in.

Today, Judge Krieger vacated a May trial date and declined to schedule a pretrial conference. Judge Krieger also indicated that a substantive ruling on the cross-motions for summary judgment "shall issue." One could reasonably infer that the ruling will issue in the near future.

The outcome of this case is obviously important to CCU and its students. It also might be important doctrinally. In Locke v. Davey, the U.S. Supreme Court held that Washington did not violate the Free Exercise Clause by denying aid to students training for the clergy. Some have argued that the Locke decision gives government carte blanche to discriminate against religion in the funding context. Others -- including the CLS Center, which represents CCU in this case -- contend that Locke hardly stands for such a broad and problematic proposition.

Stay tuned.

MO Supreme Court Upholds Financial Help to Religious College

In an opinion dated March 17, the Missouri Supreme Court held that the City of St. Louis did not violate the state constitution's "Blaine Amendment" when it provided a form of financial assistance to Saint Louis University. The case is Saint Louis University v. Masonic Temple Association.

Article IX, Section 8 of the Missouri Constitution forbids state and local government from financially supporting schools "controlled by any religious creed, church or sectarian denomination whatever." The Missouri Supreme Court assumed that the complicated financing scheme in question (something called "tax increment financing") amounted to the sort of aid that implicated the Missouri Constitution, and proceeded to contemplate whether SLU was "controlled" by a creed, church, or denomination.

The court found that it was not, essentially reasoning that SLU was not really all that religious. Trustees and faculty need not be Jesuits, Roman Catholics, Christians, or even theists. The religious faith of an applicant for admission is apparently irrelevant. In the court's words, "religious doctrine" is not the foundation for "core decision-making" by the university does not attempt to "indoctrinate the faith." Aspirational references to its Jesuit origins and connections in its by-laws and other documents were not enough to put SLU on the wrong side of the line.

Although the court reached the right result, certain aspects of its language and reasoning are troubling. The opinion suggests that when religious commitments play a stronger role in a university's life, it inevitably engages in "indoctrination" rather than "education." There are many excellent institutions of higher education that are far more faith-infused than SLU (Wheaton, Gordon, Messiah, Taylor, Dordt, Azusa Pacific, Calvin, Biola, etc.); yet it is nothing short of slander to suggest that what they do is "indoctrinate" students.

Allowing such schools to participate in government financial assistance programs does not undermine church-state separation, properly understood. Unfortunately, too many opponents of theologically conservative religion use church-state law to punish and marginalize it. In their view, the government may bestow benefits upon the "secular" and the merely "religiously affiliated," but not the more seriously religious. Each of these represents and reflects a worldview (the functional equivalent of a religion), and there is no neutral standpoint from which one can credibly dismiss seriously religious institutions as unworthy of equal participation.