A recent ruling by the U.S. Court of Appeals, seventh circuit, has prompted seven higher education groups to file a brief that urges the Supreme Court to overturn the district court’s ruling. The case goes to the University of Wisconsin’s policy not to allocate funds collected from student activity fees to Badger Catholic, a Roman Catholic organization on campus. According to the story at Higher Education News, the seventh circuit’s ruling:
. . . took away the right of Wisconsin, and potentially other public colleges and universities, to support some student activities but to deny funds to organizations for worship services, proselytizing, or other activities that explicitly involve the practice of religion, according to the brief. The groups that sued Wisconsin and that are satisfied with the lower court’s ruling argue that universities should not treat religious activities in any way differently from other student activities — and that the limits used by Wisconsin infringed on the First Amendment.
Is that what they really want to say, that religion is the same as politics, sexual orientation, debate, and chess, or whatever other cause or identity for which Wisconsin students organize?
Of course, it might seem unfair for Christian groups not to receive funding that goes to other students, but is this really a hardship worthy of hiring lawyers and going all the way to the Supreme Court? I imagine that all the attorneys fees could have funded Badger Catholic for a decade at least and probably several masses for dead Badger Catholics along the way. (If the attorneys are doing this pro bono, imagine the other worthy causes that they might have defended had it not been for some Wisconsin students wanting their fair share.)
Meanwhile, is it really too much to ask for Christians to support their own activities? If believers can readily acknowledge the unfairness of being taxed to support indecent art funded by the National Endowment for the Arts, can’t they also understand why Wisconsin students and administrators might object to Protestants receiving funds to conduct Bible studies?
The best solution is likely to drop all fees for students and let them form their own associations and generate their own budgets. Small government has its advantages. Still, the real advantages that come with the true faith should more than compensate for the $1,200 that the dean of students decided not to allocate for InterVarsity Fellowship prayer meetings.
Old Life 
CVD, where are you? I’m an attorney (full admission). DGH makes sense here.
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Richard, I do believe CVD declared a couple months back that he will never return to this ***-forsaken blog. Something about snark, was it? But I agree with you.
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While not a perfect parallel, this post reminds me of the issue of churches receiving tax-free status while refusing to agree to not promote a particular political candidate in their pulpit – both the left and the right are not guiltless. It seems to me that those churches want their cake and eat it too: keep tax free and still be involved in politics. We seem to think we’re privileged folk, us Christians – the rules don’t seem to apply to us.
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As Christians, do we not have some interest in attempting to ensure that more-or-less just laws are followed? A constitutional provision which prohibits state discrimination for or against religion may not be ideal, but even those–like myself–who are persuaded by the 2k perspective can make a decent argument that this case represents an attempt to seek the welfare of the city in which we live, knowing that its welfare is our welfare. Or have I missed something?
One of my favorite legal scholars put it this way: “God is law, and therefore law is dear to him.” The point here, for me anyway, is less the specific outcome of this particular case than the attempt to see that society obeys its own rules. This, I think, is something worth doing.
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“Meanwhile, is it really too much to ask for Christians to support their own activities?” So do you think that the 501(c)(3) deduction for charitable contributions should be taken away with respect to churches? By permitting taxpayers to take the deduction depending on whatever rate you are at (28%, 35% etc), the government is in essence subsidizing that portion of the contribution. In other words at least some percentage of what is “owed” (as the magistrates as appointed in God’s providence in this time in history have detereined) to the kingdom of the left hand (Uncle Sam) is being redirected to the kingdom of the right.
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I expect that the Seventh Circuit will be affirmed. This is different from the CLS v. Martinez case that reached the Supreme Court last year.
Martinez allows universities to refuse to fund student organizations whose membership practices do not comport with a school’s antidiscrimination policy. Therefore, Martinez permits a school apply such a rule, so long as all student organizations are treated equally under the rule. But UW seems to be going a step further in at least two different ways.
First, UW appears to be granting some groups an effective exemption from the antidiscrimination policy while denying that same exemption to other similarly situated groups. For example, under the UW policy, it might be possible for an all-black group to receive funding, while an all-Christian group misses out. Under the UC policy that was reviewed in Martinez, the university gave out no such exemptions: All groups had to be open to the entire law school community.
Second, UW appears to be denying funding to groups whose practices may pose no violation to its antidiscrimination policy. Thus, UW may deny funding to a religious group, even though the group’s membership policies comport with the school’s antidiscrimination policy.
In conclusion, UW’s practices seem to fail under the Lemon test because the policy requires the school–an arm of the Wisconsin state government–to make decisions about whether a group’s activities are too religious or not. This practice fails on all three prongs.
Prong 1: UW’s practices do not have a secular legislative purpose because the school’s policy expressly considers a group’s religious activities as a basis for determining whether the group can receive funding.
Prong 2: UW’s policy has the effect of inhibiting religion because only religious groups suffer from the policy.
Prong 3: UW’s policy causes excessive entanglement with religion because the school is making determinations about whether a group’s activities are too religious or not.
There is nothing unconstitutional about state policies that incidentally fund religious activities. Sorry for the pedantic analysis. I now spend my days writing contracts, and don’t get to think about this kind of stuff anymore.
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J.A. as long as government also grants charitable deductions for the arts, education, and other non-profits, I don’t see that the churches are gaining anything unusual out of this arrangement, though I think believers should be thankful (as opposed to resentful) for this indirect assistance. If, however, a secular regime wanted to cut out such deductions, I do think Christians should suck it up and make up the difference.
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Bob, I don’t understand the first part of your appeal to Lemon. UW’s policy seems explicitly secular in not funding religious exercises. So it would seem to comply with prong 1. I get it, you need to use religion to make that judgment, but deciding not to fund religious exercises hardly constitutes an establishment of religious criteria.
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DGH,
Under the first prong, the action under review must have a purpose that is indifferent to religion.
For example, a public school could not establish a rule that required self-identifying Christians students to park in even-numbered parking spots and required those who don’t self-identify as Christians to park in odd-numbered parking spots. But this rule would only fail under the first Lemon prong. The rule would pass Lemon’s second prong because it wouldn’t promote or inhibit religion (unless it created disproportionate competition for parking spots among one group relative to the other). The rule would also pass Lemon’s third prong because the school is merely relying on the student’s self-identification, and is not entangling itself in determining whether someone really qualifies to claim the status of being a Christian. Thus, without the first prong, the practice would stand.
So, in other words, the first prong deals with rules and practices that expressly employ religious status in a way that is generally outcome-determinative.
I’d suggest that sectarian prayers before public school sporting events is another activity that arguably fails only under the first prong. If the prayers are always Christian prayers, then it suggests that the school may be restricting participation to Christian students.
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