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In Colorado Christian University v. Weaver, the U.S. Court of Appeals for the Tenth Circuit Adopts the Incorrect Theory that Religious Individuals Are Entitled to Exemptions from Generally Applicable Laws


Thursday, Aug. 7, 2008

Recently, Judge Michael McConnell, a George W. Bush appointee, issued a very significant opinion for the United States Court of Appeals for the Tenth Circuit interpreting the Constitution’s Religion Clauses. The opinion is revealing as it takes the Supreme Court’s recent hostility to the separation of church and state in Establishment Clause cases and further spins the logic.

When McConnell was a law professor, he advocated the concept of “mandatory accommodation.” In a Harvard Law Review article, McConnell explained his theory: It holds that the government must, in the vast majority of circumstances, sacrifice the public interest to the claims of religious individuals or organizations when they challenge generally-applicable laws.

The historical arguments McConnell made have, since then, been soundly discredited by others, including Professor Philip Hamburger of Columbia University School of Law. Moreover, the “mandatory accommodation” theory was rightly and soundly rejected by the Supreme Court’s 1990 decision in Employment Div. v Smith. There, Native American Church members who were drug counselors sought to use peyote in religious ceremonies and obtain unemployment compensation even though the use violated state drug laws. The Court said that their religious motivation provided no defense to the fact that such conduct broke a law that, rather than singling them out, applied to everyone. McConnell’s attitude of entitlement to religiously-motivated conduct that violates the law is not terribly distant from the holding in Colorado Christian University v. Weaver that a pervasively sectarian school is entitled to state scholarship funds without concern for government support of religious belief and mission. In fact, the decision explicitly collapses the Establishment, Free Exercise, and Equal Protection Clauses into a single principle: “equality.”

The Political Evolution of the Claim that Religious Individuals Hold Special Entitlements

The Supreme Court has not yet gone as far as McConnell’s decision when it comes to government aid. He may be hoping for a change in doctrine (but lower federal courts are not supposed to create such change). Or, he may have fallen prey to some recent political rhetoric on the right suggesting that religious entities are entitled to receive – and even have a constitutional right to – government aid.

This rhetoric is fairly new in the history of American conservatism. The Reagan Revolution was a movement against big government, high taxes, and the disabling entitlement thinking that kept families and individuals on the government dole and away from productive lives of their own. In that long-gone era, conservatives would not have dreamed of arguing in favor of increasing government funding for anything, let alone religious mission. Big government and its large purse were not to be trusted. Jerry Falwell, among other prominent evangelicals, was publicly opposed to the public funding of religious activity.

The Bush Administration, though, has enticed conservative Christians, including Falwell’s organization and others to the government trough through the faith-based initiative program. It has also filed briefs in cases ardently supporting more funding for religion and more power for religious entities to rise above the law. Bush conservatives have, in other words, become enchanted by the very entitlement arguments they would have vehemently rejected 20 years ago. The new mantra is that if non-religious entities are receiving government funds, then they must, too. In other words, move over and give us a place at the trough.

Rush Limbaugh has dubbed the divide in the Republican Party a divide between small-government “country club Republicans,” whom he disdains, and pro-faith-based-funding “evangelical Republicans,” to whom he panders. In reality, the former are the true Reaganites, who still believe in free markets, self-reliance, smaller government, and low taxes. The latter, in sharp contrast, are anti-Reaganite conservatives who are more than willing to sacrifice the budget and to raise taxes to serve their personal religious mission(s). They see no constitutional evil in government support for any religious activity, including government-sanctioned religious discrimination in the hiring of individuals who are paid with tax proceeds.

The Legal Issue in Colorado Christian University: Public Scholarships for Students at Private Religious Colleges

That brings us to the Colorado Christian University case – another stunning example of the same sense of entitlement. Under state law, Colorado gives scholarships to Colorado students, but excludes those attending any school that is “pervasively sectarian,” which is determined according to a multi-factor test. The Tenth Circuit ruled that this exception was unconstitutional, because of the distinction between sectarian and pervasively sectarian institutions.

Very recent Supreme Court precedent suggested Colorado’s exception might have been constitutional. In 2004, in Locke v. Davey, the Court upheld a Washington state scholarship program that excluded students studying for ministry. As I discussed in my column regarding that decision, it would have been hard for the Court to sound sensible had it ruled any other way. After all, James Madison, the framer of the Constitution and the First Amendment, had made it crystal clear in his Memorial and Remonstrance that state aid for the teachers of Christianity was inappropriate and in violation of the principles of disestablishment, which he viewed as the foundation of religious liberty and freedom from tyranny.

How, then, did Judge McConnell purport to distinguish Locke v. Davey? He noted that the Washington system at issue there permitted the schools in Washington – not the state -- to determine whether a degree was for the study of theology (or any other major) or the pursuit of ministry. In contrast, the Colorado system gave the state carte blanche to distinguish between religious and pervasively religious institutions. McConnell saw this power on the part of the state as impermissibly entangling the state with religion, and impermissibly giving the state the power to interpret religious doctrine.

Why the Decision Reflects the Views Not Only of Judge McConnell, But Also of the Bush Administration and Perhaps of Several Justices As Well

There is a certain logic to the decision, which should have come as no surprise to those who have been following the Supreme Court’s aid-to-religion cases. Once the Court had ruled in 1995 in Rosenberger v. Rector of the University of Virginia that the University of Virginia could not exclude the Wide Awake group, which met for religious purposes, from its student group funding, the slippery slope had been prepared for the “non-discrimination” principle at work here. The plurality (though no majority) in the Court’s 2000 decision in Mitchell v. Helms would have dramatically increased government’s power to give funds and expensive products to religious schools. Moreover, the Court’s 2002 decision in Zelman v. Simmons-Harris upheld the Ohio voucher system that permitted religious schools to receive the state funds that had been set aside to rescue students from inner-city schools.

Judge McConnell’s opinion sometimes strays into overstatement. It ties its reasoning to the views of a plurality of the Court, rather than a majority, and adopts views that have never achieved a majority at the Court. However, it is true to the spirit of these doctrinal developments that have opened government coffers to religious purposes.

The opinion also trivializes the state’s concerns and ignores reality. Some schools use religious litmus tests, some do not, and common sense dictates that that fact should be relevant to whether state tax dollars flow into the organization.

Many schools have religious roots and even continuing strong ties to their religious denominations but reject religious litmus tests among the student body or faculty. They operate primarily on the basis of academic freedom, which allows the inclusion of students and teachers from a wide range of backgrounds holding a potentially infinite set of beliefs. When the government gives scholarships to those schools, it is not preferring or choosing religion, but rather the secular value of broad and open-minded inquiry.

In sharp contrast, some schools, like CCU, employ religious litmus tests and place restrictions on what their faculty may believe religiously, which necessarily narrows the horizon of intellectual inquiry. When government money flows into those institutions, it is just a fact that the money is furthering religious belief and mission in its most basic sense. The decision says that states may not take cognizance of these realities, but rather must treat all religious schools as though their academic freedom agenda is identical. The narcissistic focus is to be on the needs of the coercively religious, with little respect given to the broad and compelling public interest in fostering dynamic intellectual environments.

True to form, the Bush Administration submitted an amicus brief in support of the University (though there was no need for the federal government to take any position at all on the issues raised here – there was no federal statute involved and the entity accused of violating the Constitution was a separate sovereign state). The other amici broke down roughly between new-age conservatives in favor of more government funds for religion, and old-fashioned liberals opposed to government funding of religious mission on separation grounds. The latter hearken back to the era when it was assumed that government aid to religion was inherently problematic and, therefore, in need of close judicial scrutiny.

The court’s use of the distinction between sectarian and pervasively sectarian schools is a tool providing little helpful guidance. By ruling that the government cannot distinguish between schools that engage in religious litmus tests and those that do not, Judge McConnell has forced the government to lump all religiously-related schools together. Once they are in the same pool, though, the internal logic of the opinion does not seem to permit the state to choose to fund only those schools that are nonreligious.

Thus, Colorado has been forced to the following decision: scholarship funds for all schools or for none. It is precisely the same reasoning that has led the Supreme Court to conclude that schools can either open their schools after hours to religious clubs, or to no clubs, and that the University of Virginia had to fund all student clubs, no matter how much proselytizing and worship was involved and no matter the link to the school’s educational mission, or none. It is a far universe from James Madison’s in which he deplored the support of even “three pence” for religious education. The opinion never averts to the heart of Madison’s reasoning. The decision’s truncated quote from the Memorial and Remonstrance is misleading at best.

If Colorado were to remove all religious schools from the funding program, it would solve the Court’s problem of entanglement and any objection under Locke v. Davey, because the schools themselves would determine whether they were religious or not. But the decision does not seem to leave that option open as it pushes the envelope to a universe in which there are no meaningful restrictions on government aid to religion and in which the term “neutrality” is transmogrified into a justification for the happy union of church-state coffers.

Colorado authorities have announced that they will not be appealing the decision to the United States Supreme Court, and who can blame them.

The Next Step: Public Funding for Private Religious Schools

Those who care about the meaningful separation of church and state, which exists to keep these two monolithic powers from using each for the other’s purposes, should be grateful for this decision in at least one respect: It lays out so clearly and comprehensively the vision of the Bush appointees and the religious lobbyists who would turn any denial of government funds into a case of discrimination and constitutional entitlement.

The next fateful step would be for the federal courts to hold that funding for public elementary and high schools is unconstitutional unless it includes equal funding for private religious schools. Indeed, gaining such a decision is on the publicly-professed agenda of many of those who backed CCU in this case.

This approach is a harbinger of ever-increasing taxes and ever-entrenched constitutional entitlement to government funds for religious purposes. It is also a guarantee of a union of state and church power destined for tyranny. Will Chief Justice Roberts and Justice Alito support it? The key will be whether the new Justices share Judge McConnell’s drive to push forward the Rehnquist Court plurality’s vision of a system wherein government may give funds and financial support to religious entities without concern for the Establishment Clause.

The Inevitable Backlash – and How the Presidential Candidates’ Views Fit Into the Debate

Fortunately for the Constitution, however, for every action, there is an equal and opposite reaction – and Americans are very sensitive to overstepping one’s bounds. Religious entities are already receiving enormous benefits through property and income tax exemptions. When one adds entitlement to government funds to billions in tax exemption, the legal arguments start to look like nothing but a cloak for greed. Religious entities then start to look positively voracious when one piles on RLUIPA, which has religious entities arguing in federal court at the taxpayers’ expense that they should not have to obey zoning and land use regulations or even participate in land use procedures, because they could not otherwise afford the lot or plan they covet. (I have written about RLUIPA in this column and others for this site.) Adding up these positive wealth additions leads to a public trough for religion that is significantly larger than exists for any other element of society. There will be an inevitable backlash against such avarice.

We will likely see that equal and opposite reaction in politics as well. Just how much can conservative evangelical Republicans insist on government financial support, and still expect to carry the day? With this now-patent push for government funds for religion, there needs to be renewed concern within the Party about losing those “country club Republicans,” who continue to believe in smaller government, lower taxes, and more responsible public spending. The so-called “base” of the Republican Party is becoming an anchor that will sink the ship.

Ironically, though, Barack Obama’s views on this topic are far from pro-Establishment Clause. As I discussed in my last column, Obama is fervently supporting furthering the federal faith-based initiative programs. The only faint hope here, then, is that Presidential Republican hopeful John McCain, who has a proven record of distaste for government waste, and government spending that is out of control, will not choose judicial appointees through the pro-religion litmus test that has led to decisions like Colorado Christian University. It seems quite clear, at least, that McCain does not have the knee-jerk deference to religious entities that has been characteristic of the Bush Administration and so many of its judicial appointees.

Marci Hamilton is the Paul R. Verkuil Chair in Public Law at Benjamin N. Cardozo School of Law and author of Justice Denied: What America Must Do to Protect Its Children (Cambridge 2008). A review of Justice Denied appeared on this site on June 25, 2008. Her previous book is God vs. the Gavel: Religion and the Rule of Law (Cambridge University Press 2005), now available in paperback.

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