Saturday, September 4, 2010
A divided panel of the Seventh Circuit ruled last week that a university's policy of declining to fund student group worship, proselytizing, and religious instruction unconstitutional. The case, Badger Catholic v. Walsh, highlights the shortcomings in the Supreme Court's approach to the First Amendment in a limited public forum.
The plaintiff in the case, a student group called Badger Catholic, challenged the University of Wisconsin's policy of funding student group speech, except three categories: worship, proselytizing, and religious instruction. Although the University funded several Badger Catholic programs that did not fall into these three categories, the University declined to fund some proposed programs that it said did. For example, the University declined to fund a proposed mentoring program that entails meetings between students and "one of the spiritual directors for spiritual mentoring/counseling and to talk about anything they wanted for a half-hour." The spiritual directors included nuns and priests for prayer, if requested by the student. Another proposed program was a four-day summer leadership retreat, which included three masses and four communal prayer sessions.
The judges split over whether the University's policy constituted unconstitutional viewpoint discrimination.
The Supreme Court recently affirmed and explained its approach to public forums in Christian Legal Society v. Martinez:
[G]overnmental entities create designated public forums when "government property that has not traditionally been regarded as a public forum is intentionally opened up for that purpose"; speech restrictions in such a forum "are subject to the same strict scrutiny as restrictions in a traditional public forum." . . . [G]overnmental entities establish limited public forums by opening property "limited to use by certain groups or dedicated solely to the discussion of certain subjects." As noted in text, "[i]n such a forum, a governmental entity may impose restrictions on speech that are reasonable and viewpoint-neutral."
Op. at 12, n. 11 (citations omitted).
For Judge Easterbrook, writing for himself and Judge Evans, the policy constituted viewpoint discrimination. As to the counseling program, for example, he wrote: "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." Judge Easterbrook wrote that the University would have a hard time dealing with requests from groups like Quakers, for whom discussion leading to consensus is a religious exercise--ed: but is it prayer, proselytizing, or or instruction?--or religions that do not distinguish between religion and daily life.
For Judge Williams in dissent, the University established a limited public forum, and its policy was merely reasonable content discrimination, and not unconstitutional viewpoint discrimination. Judge Williams wrote that the policy excludes the content of worship, proselytizing, and religious instruction, but not religious viewpoints outside those areas (as evidenced by the University's funding of Badger Catholic programs outside those areas). To illustrate the viewpoint-neutral and secular character of the policy, Judge Williams wrote the University could also decline to fund activity like "praying for the Yankees"--secular "prayer" that's based on the content (the prayer) and not the viewpoint (pro-Yankees).
Judge Williams also highlighted the policy's feature of allowing the student group to identify its own activity. In other words, Badger Catholic may well have received funding if it simply described its counseling program and retreat in secular terms--or even in terms that didn't include prayer, proselytizing, or religious instruction.
Judge Williams highlighted another problem:
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 practices 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 do?
Op. at 20-21 (citations omitted).
The Supreme Court's recent ruling in Christian Legal Society did little to clarify the distinction between content discrimination and viewpoint discrimination, despite Judge Easterbrook's claim that the ruling dictated his own conclusion here. The competing opinions in Badger Catholic illustrate the problem: Any content-based discrimination can be viewpoint discrimination by discussing the content from a particular viewpoint--here, e.g., by proselytizing (perhaps the most plausibly content-based classification among the three in the policy) from a religious viewpoint. This is not a new problem, and nothing in Christian Legal Society (or Badger Catholic) solves it.
Even so, Badger Catholic is perhaps a poor illustration of the problem. In fact, few, if any, groups are going to seek funding for "praying for the Yankees," much less secular religious instructing. In other words, the policy is likely, if not certain, to exclude only religious groups. (On the other hand, religious groups well qualify for funding based on their non-prayer, non-proselytizing, and non-religious instruction activities.)