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In a 2-1 decision I mentioned earlier,
a panel of the 7th Circuit ruled unconstitutional the University of
Wisconsin's policy of withholding funds from student groups for
activities that constitute "worship, proselytizing or religious
instruction." The majority opinion written by Judge Easterbrook emphasizes the
school's decision to distribute funds as a public forum without regard
for the content or viewpoint of the organization or activity being
funded. With such an open policy, the court argues, Wisconsin may not
deny religious activity, even if its purpose is to avoid violating the
separation of church and state.
In a strong dissent, Judge
Williams contends that the University must be given the power to
determine the purpose and goals of the forums it creates, allowing it to
deny expression that does not comport with that purpose.
From the majority (pdf), on the need to treat equal types of activity equally:
The University is free to decline funding for all summer
retreats; if it does not pay for training workshops over the summer for
members of FH King, it need not pay for Badger Catholic’s
retreats either. Likewise, if the University refuses to fund a group
such as Sex Out Loud that counsels students to engage in “healthy
sexuality” (and distributes contraceptives to reduce the risk), it need
not fund a group that counsels from a religious perspective. If the
University decides that no student group should receive more than 1% of
the fund, or some dollar cap, it could apply that neutral rule to Badger
Catholic in common with all other claimants on the limited pot. But
having decided that counseling programs are within the scope of the
activity fee, the University cannot exclude those that offer prayer as
one means of relieving the anxiety that many students experience.
...
A university can define the kind of extracurricular activity that it
chooses to promote, reimbursing, say, a student-run series of silent
movies and a debate team, while leaving counseling to the student-health
service that the university operates itself. But the University of
Wisconsin has chosen to pay for student-led counseling, and its decision
to exclude counseling that features prayer is forbidden under Widmar and its successors.
On the public forum the school created through its student activity funding mechanism:
[T]he University of Wisconsin is not propagating its own
message;it has created a public forum where the students, not the
University, decide what is to be said. And having created a public
forum, the University must honor the private choice. Readers who think
that this line is overly formalistic...must recall that the University
of Wisconsin itself persuaded the Supreme Court to hold that
dissatisfied students are not entitled to get their student-activity
fees back, precisely because the fees are used to operate a public forum
in which students themselves, and not the University, decide what is to
be said. The Supreme Court gave its imprimatur in Southworth, with the
proviso that the University must establish neutral rules and not shut
out any perspective that is within the program’s general definition of
extracurricular student activity.
On the difficulty in distinguishing between discussion on a religious
topic (which the University was willing to fund) and engaging in
religious exercise (which it was not):
The University’s assurance that it will fund discussion and
debate, including discussion with a religious component, because it
views discussion and debate as an important part of education, coupled
with a declaration that there is just too much devotional activity in
Badger Catholic’s program, leads us to wonder how the University would
deal with an application by a student group comprising members of the
Society of Friends.
Quakers view communal silence as religious devotion, and a
discussion leading to consensus as a religious exercise. Adherents to
Islam and Buddhism deny that there is any divide between religion and
daily life; they see elements of worship in everything a person does.
Now maybe Quakers, Muslims, and Buddhists scorn the University’s
largesse (as Badger Catholic did until 2003), but a constitutional rule
must be general enough to handle all sorts of religion and all choices
by student groups.
In dissent (pdf, starting on page 16), Judge Williams argues that "the panel’s opinion fails to
recognize the University’s power to define the purposes and goals of its
own forum."
On the availability of University funds to Badger Catholic for non-worship activities:
The panel is correct that the University offers funding for
training workshops during the school year and summer breaks, but Badger
Catholic is also free to access that funding and it has. For example, in
the 2007-08 year, Badger Catholic was reimbursed for events titled
“Leadership Training Group” and “Mary House Overnight.” Badger Catholic
is also free to access funding that is provided to student groups that
offer student counseling.Just as Sex Out Loud could access the forum to
counsel students on “health sexuality,” Badger Catholic could access the
forum for activities that counseled students from a religious
perspective. In the 2007-08 year, Badger Catholic was reimbursed for
various small groups such as “Breakfast Club,” “Catholic Student Union,”
“New Student Welcome” and “Sunday Night Sexuality.”
The University pointedly does not exclude events or activities
from the forum because they approach leadership training or counseling
from a religious perspective. In fact, Badger Catholic was reimbursed
for the vast majority of the funding it sought in the relevant year, an
amount of money totaling 9% of the total fund. What the University has
not funded are six activities that do not merely involve, but are mostly
“worship, proselytizing or prayer” because those activities do not
further the forum’s goals. Our task is to determine whether this line is
both viewpoint neutral and reasonable in light of the forum’s purpose
of enhancing the students’ educational and extracurricular campus
experience.
On the harm done by the majority's contention that religious worship
is indistinguishable from speech from a religious viewpoint (my
emphasis):
The panel reaches its conclusion that the University is engaging
in viewpoint discrimination by stating that purely religious activities
have “little meaning on their own” and cannot be meaningfully
distinguished from the categories of “dialog, discussion or debate from a religious perspective” funded by the University. This
conclusion degrades religion and the practice of religion. If religion,
and the practice of one’s religion, can be described as merely dialog
or debate from a religious perspective, what work does the Free Exercise
clause of the First Amendment do? The Free Speech clause, which provides constitutional protection of the right to discuss and debate
views, would sufficiently protect the right of people to have “dialog,
discussion or debate from a religious perspective.” That cannot be
right, and that religion is not set apart from other forms of dialog or discussion has never been the position of the Supreme Court.
On whether this distinction between speech and worship entangles the court in theological matters:
[T]here is no need to get into a theological debate about what
worship means and whether there is truly a secular equivalent to
worship. The University does not deny money to Badger Catholic for
expressing the Catholic version of worship; it denies money to any group
to practice its version of worship. If, as Badger Catholic claimed at
oral argument, a secular form of worship is possible (for example, a
group self-identifies as “worshipping” the Yankees), then the University
would have the same neutral basis for declining to fund that specific
worship activity.
Arguing that the University is engaged in permissible "content discrimination", not impermissible "viewpoint discrimination":
The University is not withholding benefits from Badger Catholic
because it has a religious perspective. Badger Catholic would only have a
claim of viewpoint discrimination if the University was choosing to
allocate funding for Presbyterian or Baptist or Jewish religious
services but declining to fund Catholic worship services, for example,
but that is not the case here.
...
Here, there is no equivalent secular speech funded. To exclude purely religious activities is a categorical, neutral exclusion.
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