Firm Foundation

This week the 10th Circuit Court of Appeals unanimously reversed a district court decision in Colorado Christian University v. Baker, concluding that the state of Colorado unconstitutionally discriminated against Colorado Christian University (CCU) by not allowing its students to participate in a state scholarship program because the school was deemed “pervasively sectarian.”  The Foundation filed an amicus brief in the case urging reversal of the district court’s decision in favor of the state based on the Equal Protection Clause of the 14th Amendment.  The brief argued that the the Equal Protection Clause forbids unjustified government discrimination based on religion which is exactly what the state of Colorado did in this case: unjustifiably discriminate against CCU because of its status as a committed Christian school. 

Judge Michael McConnell, a constitutional law expert on matters of religion, wrote the 47-page opinion of the court.  However, Judge McConnell chose not to pick the Equal Protection Clause as the main vehicle for his analysis, stating, “While the Establishment Clause frames much of our inquiry, the requirements of the Free Exercise Clause and the Equal Protection Clause proceed along similar lines.”  This is unfortunate because, as the Foundation’s brief demonstrates, if the decision is based on the actual words of the Constitution, the Equal Protection Clause is the only one of the three clauses Judge McConnell mentions that legitimately applies in this case.  When he was a law professor at the University of Chicago, McConnell wrote voluminously about the original understanding of religious liberty during the Founding era.  But apparently as an appellate court judge he feels more constrained by the precedents of the U.S. Supreme Court.  The opinion thus focuses on Establishment Clause precedents that are notoriously poor in articulating clear principles. 

Be that as it may, Judge McConnell did reach the right result in the case by striking down the religiously discriminatory criteria present in Colorado’s colleges scholarship aid program.  And while Judge McConnell may not have cited the correct constitutional provision for doing so, he did identify the heart of the problem with Colorado’s program, noting that “the discrimination is expressly based on the degree of religiosity of the institution and the extent to which that religiosity affects its operations, as defined by such things as the content of its curriculum and the religious composition of its governing board.”  In other words, Colorado was denying scholarship money to CCU’s students solely because the state deemed the school to be “too religious” for its liking.  The 14th Amendment categorically forbids states from making such a determination. 

Overall, the decision represents a welcome victory that likely will not be appealed to the U.S. Supreme Court.  Colorado probably wrote this discrimination into the law out of fear that it would be sued by the likes of the ACLU or Americans United for Separation of Church and State if it provided scholarship money to all schools without regard to their religious affiliations.  Hopefully this decision will go some way toward convincing state and local governments that they need not discriminate against religious people and entities in order to satisfy the demands of the Establishment Clause.