"Sectarian" vs. "Pervasively Sectarian"

A pretty major decision, Colorado Christian University v. Weaver, was filed this Wednesday by the United States Court of Appeals for the Tenth Circuit regarding college funding in Colorado. Some background: Colorado has in its state constitution what is referred to as a Blaine Amendment, which is a prohibition on the government directly funding any educational institution that has a religious affiliation. Thirty-nine states have some version of this idea, which swept the country in the late 1800's and early 19oo's as a result of huge levels of anti (Catholic) immigrant sentiment, and the rise of Catholic schools in this country (at the time, there were very few Protestant schools, and various courts have explicitly recognized that these amendments specifically had Catholics in mind). Anyway, a lot of time and energy goes into figuring out how to "get around" these amendments because, frankly, religious institutions often do a better job--more cheaply--than the state-funded schools and colleges.

One way states have been doing this is by providing funding directly to the students, rather than the schools, who then have the choice of where to use that money. Basically, vouchers (which I'm not going to get into the pros and cons of too much here, other than to say that's what the current strategy to avoid church/state issues is). In Colorado, the Court recognized that the intention of this change in college funding was to give students as many options as legally allowed without violating separation of church and state. So, the state-granted scholarships could be used at religious colleges ("sectarian") as long as they aren't TOO religious ("pervasively sectarian"), as defined by six criteria. The Court, in a nutshell, decided that the state could not discriminate between religious groups like this: either they all qualify, or none do; also, the Court said the process of deciding which were "sectarian" and which were "pervasively sectarian" got the state unconstitutionally "entangled" in measurements of religiosity.

I do think the state's decisions leading up to this have been slightly comical: two "sectarian" schools were funded, while two "pervasively sectarian" schools were declined. Included in the first group were the University of Denver (DU) and Regis, the local Jesuit university. DU is nominally Methodist, but I am willing to bet money (having known a bunch of DU students) that the majority of the student body there doesn't know it. For them to say that Regis is only as Catholic as DU is Methodist is, with no offense meant to Regis, slightly embarassing to Regis as far as I'm concerned. To be fair, one of the criteria involved measuring the percentage of students who were members of that religious group; however--when applying this to Regis--the state measured how many students were Roman Catholic, while--while applying this to Colorado Christian--the state measured how many students were Christians of any denomination (including some, such as Mormons, who many of the other students wouldn't have counted as technically "Christian"). The Court rightly pointed out that this was stupid.

While I think this was a great decision in terms of religious liberty, I'm not sure if it will ultimately be good for the colleges involved or not. I wouldn't really be surprised if the state legislature, which is now controlled by a different party than the one involved in pushing through this funding strategy, just says, "OK, we'll make sure the students can't use their money at ANY religious institution, then." For more of the initial reaction, including a disappointing (to me) quote from the Anti-Defamation League, check out The Denver Post's story.

Oh, and if you've never read a legal decision like this, first: congratulations, but also: this one is actually way better than average. Many decisions are written by judges who couldn't communicate their way out of a paper bag, but Judge Michael McConnell (who is described by the First Things blog as a "famed law-and-religion scholar") has produced a very readable and, if you're kinda nuts like me, enjoyable document. One of my favorite bits is Footnote 8 (pg. 37): "We are unable to figure out why the statute employs these two different expressions for what appears to be the same thing." Also, I like the phrasing of this snippet from page 27: "But the analogy is inapt." Hee-hee: inapt.

Yes, I am a dork.