Remembering Which Side I'm On

Back when I was in high school, Church/State separation was one of my pet issues. And believe you me, I was a staunch separationist. I wrote my college admission essay on why I believed "under God" in the pledge was unconstitutional. In fact, I wrote my first real blog post about it. It was one of my favorite topics to speak on in debate, and I did so regularly.

My current position of skepticism towards standard separationist doctrine was thus quite some time in coming. And reading this opinion just released by the 10th Circuit, written by Judge Michael McConnell (whose scholarship was instrumental in my shift) reminds me of how far I've departed from my old stance. For even though I (think I) agree with his ruling (at least on an ideal level -- I'm not 100% convinced it comports with the relevant Supreme Court precedents), I still felt a bunch of twinges when I read it where I had to remind myself, "David, this is your position too."

Basically, the case dealt with a Colorado statute which prohibited the assignment of scholarships to students attending "pervasively sectarian" colleges or universities. The state originally enacted the rule to comply with Supreme Court precedents which heavily restricted the usage of state funds for sectarian ends. Twinge #1 came when Judge McConnell was recounting how many of those rulings were overturned. I think that to some degree those precedents were too harsh, but I still instinctively recoil against their loosening.

I had presumed such laws were permissible under Locke v. Davey, 540 U.S. 712 (2004). Judge McConnell spends a lot of time distinguishing that case, and while I'm not 100% sure that he's successful, I thought Locke was wrong in the first place (so again, speaking to my ideal state of the law here, not what this panel in this case should have done given the existence of that precedent). Particularly, I do not find the panel's argument that distinguishing "sectarian" and "pervasively sectarian" institutions constitutes impermissible discrimination between religions, though I'm more sympathetic to the argument that the deep inquiry the statute demands into the university's content to see if it's too "indoctrinating" may run afoul of the Establishment Clause.

Twinge #2 came when the college which was suing, Colorado Christian University, was described. It sounds like the type of hard evangelical institution that I want to suck as much power from as possible. But though my paradigm does, broadly speaking, provide greater protection to minority faiths than majority belief systems like Christianity, this appears to be a case where a Christian organization would earn protection under my general accommodationist tendencies. Moreover, another school that will likely benefit from this decision is Naropa University, one of the few Buddhist-affiliated institutes of higher education in the country. And indeed, at first glance the denial of scholarships to otherwise qualified Naropa University students seems to be a dead-on case of the way strict separationist laws can unjustly harm minority practitioners (particularly since Naropa does not appear to be "pervasively sectarian" anyway).

In any event, regardless of how ultimately this case should have been decided (under either the prevailing or my own Church/State doctrine), I found it interesting my gut response opposing the ruling even though intellectually I knew it was closer to my current jurisprudence. I'm glad I could recognize the contradiction when I saw it, but it just goes to show that I haven't managed to extract myself from separationism quite yet.