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Wednesday, July 23, 2008

Judge McConnell on "pervasively sectarian"

Today, in an opinion written by law-and-religion scholar Michael McConnell, the United States Court of Appeals for the Tenth Circuit ruled that Colorado violated the Constitution when it refused, on the ground that the school is "pervasively sectarian", to permit otherwise-qualified students to use publicly funded scholarships at Colorado Christian University.  Here is a link to the opinion.  The court found "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."  Any reactions?

Posted by Rick Garnett on July 23, 2008 at 03:32 PM in First Amendment | Permalink


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I am not religious, but I found McConnell's opinion refreshing. I particularly liked his use of Heller as a baseline for determining the level of scrutiny of an enumerated right in a case of first impression. The issue is simple for me, and it is whether the First Amendment permits state-sponsored religious discrimination. McConnell's answer is no, even where the actual intent of the state is to provide educational benefits to as many students as possible. The best way to provide educational scholarships to as many students as possible is to provide scholarships to any student who meets the eligibility requirements regardless of which accredited college she attends.

To Paul K, I have to say that you missed the spirit of McConnell's opinion. The entire point is that religious discrimination by the state is unconstitutional, because it is impossible to discriminate between religions without making a determination as to what a religion is, which would establish an official state position on religious doctrine that may conflict with that of a church. The state has no authority to tell Catholics what Catholicism is. It simply hands out educational scholarships on the basis of neutral, objective criteria. So, after this opinion, at least in the Tenth Circuit, no state should arbitrarily "exclude religious groups from a funding program."

I acknowledge that McConnell seems to have noted in his opinion that there is a circuit split between the First and Tenth Circuits on this issue, but he also notes that only Justices Kennedy and Stevens take the opposing view. Given that Justice Alito replaced Justice O'Connor, whose endorsement test McConnell eviscerates, and Alito is likely far more receptive to McConnell's take on the religion clauses than O'Connor would be, if cert is granted, it looks like McConell's opinion would be affirmed. Not to mention Judge McConnell pointed out that defense counsel's "factitious" argument distinguishing this case from others on the premise that this case discriminates between types of institutions rather than degrees of religiosity had been first raised at the appellate level by the Supreme Court litigation clinic and former Solicitor General who parachuted into the case.

Posted by: Jackson Pollack | Jul 27, 2008 5:59:11 AM

Under this opinion, do you think that anytime a state wants to exclude religious groups from a funding program without entangling itself, it needs some non-state institutional buffer to make the call about what's religious and what's not? As far as I can tell, that's the only safety valve McConnell suggests. Are there others?

Or (maybe more to the point) is McConnell trying to limit Locke to its facts?

Posted by: Paul K. | Jul 24, 2008 2:28:17 PM

McConnell's scholarship converted me from strict separationism to a more accommodationist stance, but reading his opinion I was still beset with some old-school separationist twinges. I had to remind myself: "Dude, you agree with this guy now. Remember?"


Posted by: David Schraub | Jul 23, 2008 11:02:31 PM

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