Kentucky Judge Rules Appropriation to Religious University for Pharmacy Building Violates State Constitution

In PennyBacker v. Beshear, a Kentucky Circuit Court Judge ruled on March 6, 2008 that the Kentucky legislature's appropriation of $10 million to the University of the Cumberlands violated the state's ban on direct support of religous organizations.  The University of the Cumberlands is a private university affiliated with the Kentucky Baptist Convention, but the appropriation was for the construction of a pharmacy building.  Simliar to the arguments in support of the Faith and Community Based Initiative, the defendants argued (according to aMarch 7, 2009 Inside Higher Education Article) "that as long as Cumberlands pledged to keep the pharmacy school secular, there were no church-state implications, and that Kentucky legislators needed the flexibility to use private religious colleges, as well as public ones, to advance state [secular] goals."  In rejecting that argument, the Kentucky Court stated, "there is no question that the appropriation of $10 million tax dollars to the University to construct a pharmacy building is a direct payment to a non-public religious school for educational purposes. This type of direct expenditure is not permitted by the Constitution of Kentucky." 

I can't tell from the opinion whether the judge rejected the legal argument -- that appropriations to religious [nonprofit] groups are permissable for secular purposes -- or whether he concluded as a matter of fact in this particular case that the government appropriation violated First Amendment type restrictions against church-state entanglement.  The former interpretation seems more likely and would, if applied on a national level, call into question direct grants to religous nonprofits for secular purposes.  A comment posted to the Inside Higher Education website captures the church-state concerns relating to direct grants to religious organizations:  "do you really think this university could keep the pharmacy school secular? I am sure they would indoctrinate students into not dispensing birth control or the morning after pill because that is what God told them to do."  On the other hand, sentiments like those expressed in the Amherst Student Newspaper suggest that it is possible and efficient to provide government funding to religous organizations in support of their secular activities.

Another interesting point about this case is that there is usually not sufficient opposition to whatever social service the religious organization is providing to force a judicial confrontation.  But in this case, according to the Inside Higher Education Article, the Kentucky Fairness Alliance, a nonprofit that argues against discrimination based on sexual preference, brought suit only after the University expelled an openly gay student. 

dkj