Key test today for government funding of faith-based entities

Federal court considers inclusion of Maryland religious college in state aid

Washington, D.C. – The constitutionality of government funding of religious entities was at issue today as the U.S. Court of Appeals for the Fourth Circuit heard argument on whether a Takoma Park, Maryland college can participate in a state aid program. Maryland is appealing a ruling last August by U.S. District Court Judge Marvin Garbis that it “infringed upon Columbia Union College’s free-speech rights” by denying funds to the Seventh-day Adventist college “solely because of its religious viewpoint.” Although Maryland’s Sellinger Program funds Catholic and other private colleges, the State argued – unsuccessfully – that CUC was ineligible. Maryland claims that CUC is “pervasively sectarian,” i.e., too religious to receive government aid for even secular activities, such as math and science courses.

Columbia Union College v. Oliver has been closely watched as a potential candidate for Supreme Court review. The case would give the High Court an opportunity to discard or further limit the “pervasively sectarian” doctrine, which a 4-Justice Supreme Court plurality said “should be buried” in last term’s Mitchell v. Helms decision. The doctrine is at the heart of the debate over whether secular services provided by faith-based organizations should be eligible for government funding.

Columbia Union College is represented by the Center for Individual Rights (CIR) and Hew Pate of Hunton & Williams in Richmond, Virginia. After today’s argument, Mr. Pate said he was “confident that the appeals court will uphold Judge Garbis’s ruling and allow CUC to participate in the Sellinger Program on an equal footing with Maryland’s other private colleges.” “The judges’ questions today clearly indicated they’re aware that CUC has been treated as a second-class citizen because of its religious viewpoint,” said Michael P. McDonald, CIR’s founder and Director of Litigation. “It’s time for the discrimination to end,” he added. CIR has been successfully advancing the principle of neutrality towards religion – that is, neither discrimination nor special benefits – as the proper constitutional standard, most notably, with its 1995 Supreme Court victory in Rosenberger v. University of Virginia.

CUC’s case also has implications for the relationship between academic freedom and religion, because academic freedom is one of the factors courts frequently analyze in assessing whether a school is pervasively sectarian. In its appeal, Maryland contests Judge Garbis’s conclusion that “there is not a denial of academic freedom . . . because a college requires its faculty to follow the religious mission of the school.”

Photo: “Lewis F. Powell, Jr. Courthouse” by Acroterion licensed under CC BY-SA 3.0.