Religious student group entitled to funds for worship and proselytizing

by on September 13, 2010  •  In Religion

The Seventh Circuit has ruled that the University of Wisconsin may not limit allocation of student activities funds to student organizations by excluding support for religious worship, proselytizing or religious instruction. Badger Catholic v Walsh [2010 WL 3419886].

The decision is a 2-1 split on whether this kind of exclusion discriminates based on viewpoint and is thus unconstitutional, as held by the majority; or whether it simply limits the content of the student activities program (considered to be a limited public forum) and is constitutional, so long as funds would be denied to any faith group for the same activities and funds are granted to all faith groups for other activities, as the dissent argued. 

The court heard argument last October, but held the case until after the Supreme Court ruled in Christian Legal Society v. Martinez [130 S.Ct. 2971], and it appears to be the first major decision interpreting CLS.  Both Judge Frank Easterbrook, writing for the majority, and dissenting Judge Ann Williams based their analysis on CLS. I would not be surprised if the Badger Catholic case followed CLS to the Supreme Court.

Judge Easterbrook's opinion reasoned that the "university cannot shape Badger Catholic's message by selectively funding the speech it approves, but not the speech it disapproves…[I]t must accept al comers within the forum's scope." He found that CLS (although it allowed Hastings Law School to refuse to recognize the plaintiff group because it excluded certain students for religious reasons) continued the line of cases that requires universities to treat religious organizations by the same criteria as others. "There can be no doubt after Christian Legal Society that the University's activity-fee fund must cover Badger Catholic's six contested programs, if similar programs [e.g. discussions or training] that espouse a secular perspective are reimbursed."

Not so, said Judge Williams. "To exclude purely religious activities is a categorical, neutral exclusion," and the University can choose to limit eligibility for limited funds by excluding a category of expressive activities. On her analysis, Badger Catholic would have a viewpoint discrimination claim only if the University allocated funds for the religious services of other faith groups but not for its services.  She cites CLS for the principle that "governmental entities can block access to a limited public forum as long as the barrier is viewpoint neutral."

She states the legal conundrum well: "The constitutional question is whether the University is disallowing groups to express a particular view on a permissible forum topic or whether it is disallowing groups to express any view on a [specific] topic. The former is unconstitutional viewpoint discrimination, the latter is constitutionally permitted content discrimination." 

I think Judge Williams has the better argument, but the law is far from clear. Stay tuned.


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