Blog from the Capital

In Colorado, a law prohibits the state from giving public tuition assistance money to students enrolled in "pervasively sectarian" institutions, in an effort to avoid conflicting with the Establishment Clause of the US Constitution.

Colorado Christian University is challenging their students' exclusion from the program in an interesting case that draws on the direct-indirect aid distinction that has become so important in government subsidy church-state arguments. Short of training for an explicitly ministerial position, the school argues, denying students who attend religious institutions amounts to a violation of Free Exercise, and choosing which schools fall under a "pervasively sectarian" category amounts to an Establishment Clause violation.

A lower court ruled against their complaint, but yesterday a panel of the 10th Circuit heard their appeal and from a Denver Post report it sounds like they were none too impressed with the state's position that the law is constitutional.

[Judge] McConnell questioned why the court should uphold the state law when it's not clear why the exclusion was put in place.

"We're looking to see whether the state had a purpose to sustain this," he said. "Why should we uphold it for a facetious purpose that it looks like the state never had?"

In a friend of the court brief supporting the state's position against the University, AU, the American Jewish Committee, the ACLU and others argued that Supreme Court precedent thankfully allows states discretion for some "play between the joints" of the two religion clauses.

For years, of course, the difficult question under the First Amendment has been identifying which forms of public assistance to religious education are permitted; the Supreme Court has never held that such funding is constitutionally required. The rule advanced by CCU and its amici – that all forms of aid permissible under the Establishment Clause are compelled by the Free Exercise Clause – would leave the States and the federal government in an untenable position, facing Establishment Clause challenges when they extend disputed forms of aid to religion and Free Exercise challenges when they do not.

You can read all of the briefs in question at the Christian Legal Society's handy site here. CLS argued the case for the University.