Viewpoint neutral

Can a public university's mandatory student fees support worship? The 7th U.S. Circuit Court of Appeals said yes, ruling Sept. 1 that the University of Wisconsin was wrong to deny student funds to the Badger Catholic student group because its activities include worship, spiritual counseling, and proselytizing.

Religious discussion, not worship, is allowed under the school's policy, but the court said that distinction was meaningless because worship could have many iterations in a given religion. And the ruling, which affirmed lower court rulings, argued that funding religious student groups was constitutional.

The circuit court had delayed its ruling until after the U.S. Supreme Court ruled in June in Christian Legal Society v. Martinez, which declared that a public law school could require religious groups to accept any member, religious or no. While the high court ruled against the Christian Legal Society (CLS), it said the law school must give recognition and funding for such groups without regard to viewpoints. In the circuit court's opinion, Judge Frank Easterbrook emphasized that part of the Supreme Court ruling, arguing that in light of the CLS decision the University of Wisconsin must fund the Catholic group, "if similar programs that espouse a secular perspective are reimbursed."

So, while the CLS decision means that student groups can be required to accept anyone into membership, the groups can still worship or proselytize without endangering their funding.

"Some universities are interpreting the CLS case as a vindication of anything a university wants to do with a student organization," said Jordan Lorence, an Alliance Defense Fund attorney who argued Badger Catholic's case to the circuit court and also worked on the CLS case before the Supreme Court. "It isn't. This decision is helpful in reminding universities . . . that they still have to be viewpoint neutral."

U.S. Circuit Judge Ann Claire Williams dissented, writing that the university had made legitimate distinctions in what it would fund, and that excluding "purely religious activities" from funding was a "neutral exclusion." She argued that because the university wouldn't fund any worship or proselytization it was being "viewpoint neutral."

While the court ruled in favor of the Catholic student group, it did not require the school to cover the funds denied to the group in previous years.

Lorence said a view persists that "worship is some sort of mutant form of expression that deserves only second-class protection under the First Amendment." If the government has to decide what worship is exactly, it will need to make theological determinations. "To single out worship is a way of gerrymandering," he said.

The Supreme Court ruled in 2000 that the University of Wisconsin must fund student groups regardless of their viewpoints. "When a university requires its students to pay fees to support the extracurricular speech of other students, all in the interest of open discussion, it may not prefer some viewpoints to others," Justice Anthony Kennedy wrote in that Supreme Court opinion. Since the university seemed to have ignored that ruling in Badger Catholic's case, Easterbrook wrote for the 7th Circuit that this new ruling was "not just a bit of friendly advice" and that if the university ignored this ruling, it "will come to regret it."

The university hasn't decided yet whether it will appeal the decision to the Supreme Court.