Judge McConnell’s opinion in the case involving Colorado’s denial of Colorado Christian University’s request to participate in the state’s scholarship program because the university is “pervasively sectarian” seems completely persuasive as an application of the Supreme Court’s recent First Amendment Religion Clause decisions. (The case is linked to yesterday’s post: here). Judge McConnell points out that the exclusion of pervasively sectarian institutions both discriminates among religions (sectarian institutions qualify, but not pervasively sectarian ones) and requires the state to pass judgment on religious belief and practice.
My one qualm about the decision is really a qualm about the path the Supreme Court has taken in these cases over the past decade or so. It seems to leave no room for state institutions to distinguish among potential recipients when deciding who to fund or not fund. The usual test case is an organization like, say Ku Klux Klan University, which might be difficult to deny funding to on some readings of the analysis in cases like this one.
One of the more interesting questions, it seems to me, is whether the state will appeal the decision. Before becoming a judge, Judge McConnell was arguably the leading Religion Clause scholar and litigator in the country. It’s hard to imagine that Colorado would be able to successfully challenge the decision in the Supreme Court. But if they don’t appeal, the Tenth Circuit decision will wield nearly as much authority as a Supreme Court decision, given who wrote it.