The Tenth Circuit decided an interesting religious liberty case yesterday. Colorado has a statute that allows students to use state scholarships at any accredited university in the state - private or public, religious or secular - as long as the school is not "pervasively sectarian." In Colorado Christian University v. Weaver, a Christian university challenged the exclusion and the a unanimous panel of the Tenth Circuit found it was in violation of the First Amendment.
At the time that Colorado's law was passed, it was thought that the use of public scholarship money at pervasively sectarian institutions would violate the Establishment Clause. The Supreme Court has since made clear that this is not the case. Everyone in the case agreed that Colorado could, if it wanted to, permit the use of public scholarship money at a pervasively sectarian school.
But Colorado has not eliminated - and continues to enforce - the pervasively sectarian exclusion. We know that it could permit scholarships for students at pervasively sectarian. Is it required to?
Colorado argued that it was not, relying on a recent Supreme Court decision, Locke v. Davey, that held that, while the state of Washington could provide scholarships for the study of devotional theology, it is not required to and this could carve out an exception for that course of study and exclude it from a general scholarship program.
The Tenth Circuit disagreed. Colorado's exclusion violates the First Amendment because it discriminates among religions and that the basis upon which it does so (determining what is pervasively sectarian) unconstitutionally entangles government with religion.
I think that the Court got it right. What's interesting about the case is its suggestion of potential limitations on Locke which was a bit of an outlier from a trend that saw the Court increasingly requiring that comparable religious and secular activities be treated in the same way. Colorado Christian's limitation allowed the use of public money at pervasively sectarian schools but its reasoning may encourage states to adopt broad prohibitions of all funding of religious uses.
For those of us - like me - who believe that Locke was wrongly decided, we are still searching for a limiting reading of the case.
The decision in Colorado Christian was written by Michael McConnell who was a very prominent religious clause scholar prior to his appointment to the bench. He was on the short list for the Supreme Court at the time of the O'Conner and Rehnquist vacancies and should be again in a McCain administration.