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More on the Religious Liberty Case--Skeel

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.

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Comments ( 3 )

I don't think it gets to the Supreme Court, if only because there's really no circuit split, right? But maybe the 9th will do us all a favor and rule differently.

Your qualms are spot-on, I'd say, and seem to me to be the inevitable result of having these sorts of issues litigated. Take the Rosenberger case. UVa's decision not to fund any religious publications was probably the confluence of a misguided application of EC thinking, some hostility toward religious groups (especially the more conservative ones on campus), and - perhaps greatest of all - a desire on the part of campus administrators to get themselves out of the business of *choosing* which things deserve support and which don't. Then they'd have to use their judgment and be held accountable for that judgment. But a broad rule that just says "here be dragons" insulates them (which as any professor knows is the second-highest priority of any administrator, only second to increasing his budget).

In that sense, then, maybe Rehnquist's decision in Locke isn't so bad: it allows space for the normal political institutions to do their job while setting some fairly basic boundaries. (I think the boundaries aren't quite right and that McConnell got the better of them here).

I agree with your substantive comments, and can only add that I the state must have been crushed to learn that McConnell was on their panel.

On the circuit split question, I think Bryan is right that there's no split in the circuits at this point. But a split may well emerge before long. The Colorado Christian University case is quite different from a 2004 First Circuit case called Eulitt, which upheld a Maine program that provided tuition to secular private secondary schools but not to religious ones. Judge McConnell distinguished this case rather than rejecting it, but they seem to me to read Locke very differently.