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Jewish World Review August 5, 2008/ 4 Menachem-Av 5768 Church/state wall beginning to crumble? By Chris Leppek
Ruling in Colorado case has ramifications for faith institutions of higher learning
http://www.JewishWorldReview.com |
In a legal slugfest waged in Denver last month, a Christian university traded punches with the State of Colorado — and won by a knockout.
The Jews were paying very close attention.
On July 23, the 10th US Circuit Court of Appeals, reversing a lower court decision, ruled that the state's denial of financial aid to students enrolled in the Lakewood-based Colorado Christian University was unconstitutional.
For five years, the state has denied stipends from the College Opportunity Fund to students enrolled at CCU on the basis that the evangelical Christian university meets the criteria of "pervasively sectarian."
Testimony at the just-concluded trial left little doubt that CCU — whose president is former US Senator Bill Armstrong — does indeed have a strongly religious flavor. Students are required to regularly attend chapel services or face possible fines. Faculty members are required to take an oath of belief in the Bible.
However, based partly on testimony from members of the Colorado Commission on Higher Education, which administers the financial aid, the appellate ruling found the phrase "pervasively sectarian" to be excessively vague.
The court also found that since state aid is made available to such Colorado schools as Regis University and the University of Denver — institutions run by Roman Catholic and Methodist bodies respectively — the denial of funds to CCU is discriminatory.
Thus, the court wrote, Colorado "discriminates among religions without constitutional justification."
Although the case itself focused exclusively on a Christian school, the precedent established by the Circuit Court ruling immediately caught the notice of regional and national Jewish organizations, where reactions varied widely.
On one side, Jewish organizations which support a liberal interpretation of the constitutional separation of church and state wasted no time decrying the decision as a serious breach in that metaphorical wall of separation.
Nationally, the American Jewish Congress, which organized an amicus (or "friend of the court") brief in favor of the state's position in the case, used strong language in a press release issued just hours after the decision.
"The decision," it read, "is part of what is no less than a constitutional counter-revolution."
On the other hand, Jewish schools and universities which potentially stand to benefit from the now-authorized government largesse — and which might also have previously been classified as "pervasively sectarian" because of their Orthodox religiosity — applauded the ruling and took the opportunity to offer their own interpretation of constitutional law concerning religion.
The Colorado spokespersons for the American Jewish Committee and Anti-Defamation League were crystal clear in their condemnations of the ruling.
"It's a problem," said Gale Kahn, AJC area director. "Colorado Christian University is a Christian college, a pervasively sectarian institution, and to say that it's similar to any other institution of higher education is incorrect.
"[CCU] is a religious institution where the teachers have to take a Christian oath," Kahn said. "Pervasively sectarian means that every aspect of that school is Christian. At DU and Regis, they have a liberal arts component that's not religious. They are not pervasively or predominantly Christian. But at CCU religion permeates every aspect of that school.
"Certainly, we don't want to subsidize any religious activity. We're not happy when any taxpayer dollars are used to fund religious activity, and this college is a pervasively and obviously religious institution."
Bruce DeBoskey, regional ADL director, echoed those concerns. "ADL is deeply troubled by this ruling and we're fearful for what it will lead to in terms of the continual breaking down of this wall of separation of church and state," he told the Intermountain Jewish News.
"This was a serious setback for religious liberty in Colorado. Obviously, the separation of church and state is a concept which exists in order to ensure religious liberty. To have government money in this case going to help fund a pervasively theologically oriented school, such as Colorado Christian, the wall separating church and state is no longer in existence."
Even granting that Colorado's definition of "pervasively sectarian" might be vague, DeBoskey said it's not reasonable to dispute that Colorado Christian University is a very religious institution.
"In this school you're required to take specific religion classes, not just comparative religion. You're required to go to chapel. Faculty members are required to sign an oath of belief. This is not a nonsectarian school, it's a sectarian school promoting a particular theological belief system."
DeBoskey stressed that specific definitions and semantics are really not the issue in this case.
"Wherever you draw a line, somebody is going to fall on one side, and somebody else on the other," he said. "There is a standard at which a school has to fall on one side or fall onto another side. In this case we have a school which no one can question is pervasively theologically oriented. That's not a religious liberty. That's not like a Regis, for example, a Jesuit school, where you don't have to take any religious courses in order to get a degree."
The fact that CCU is a Christian school "doesn't matter," DeBoskey said.
"This decision may well have very important ramifications on people of all faiths. The Constitution preserves religious liberty from majority to minority religions, and ultimately when religious liberty is eroded it hurts all faiths because it gives the government a greater opportunity to say which religions can be practiced and what can be taught. That's dangerous both for majority and minority faiths. This is stuff that worries us at ADL very, very much."
There is, of course, a Jewish perspective to this issue that is diametrically opposed to that supported by AJC and ADL.
Rabbi Isaac Wasserman, dean of Yeshiva Toras Chaim — an Orthodox school for men at both the high school and collegiate level — welcomed last week's ruling itself and the long-term precedent he hopes it sets.
"I'm certainly excited and very pleased that the state scholarships for university students might be made available. We do have college level students, a group of them, and they might be able to benefit from this."
Yeshiva Toras Chaim currently has eight students enrolled in college level studies, six of whom are married, Rabbi Wasserman said. All of them live in Denver, but the rabbi has not yet looked into whether they would be eligible for the state scholarships that were affected by the ruling.
The rabbi anticipates that the students' ages, taxpayer status, and their parents' permanent place of residence will probably have to be factored into their eligibility.
Rabbi Wasserman, however, is absolutely clear in his view that the court decision does not violate constitutional church-state separation guidelines, since he firmly believes that most secular advocates of church-state separation have a grossly overbroad definition of that separation.
The writers of the American constitution, the rabbi said, were thinking in an 18th-century context in which any number of European governments were literally controlled by religious institutions, especially the Catholic Church.
A more relevant 21st-century interpretation, in Rabbi Wasserman's opinion, would be to regard the line of separation as "no intrusion" — meaning no intrusion of government into religious institutions — and "no influence" — meaning no influence of religion on the affairs of government.
"They're taking it much too far," the rabbi said of Jewish organizations who oppose such rulings, "and they really have no interest in their Jewish continuity.
"The only ones who are against it are those who don't want us to show up and be Jewish. They are the totally secular who are not interested in furthering . . . Jewish life."
His view of "religious liberty," therefore, is radically different from those who see the proverbial line of separation in more absolute terms.
"We have a democratic country that allows us the freedom to practice our religion," Rabbi Wasserman said, "and by pushing the idea of separation of church and state they are negating the great opportunity which the United States has given to religious institutions."
The only other Jewish educational institution in Colorado that might be affected by the ruling is Denver's Beth Jacob High School. Although chartered as a high school, a number of its junior and senior students take courses for college credit, through a joint Beth Jacob-UCD project.
Some of his students, said dean Rabbi Myer Schwab, have earned as many as 40 college credits before their high school graduation.
Although Rabbi Schwab admitted that he currently knows nothing about the potential impact of the recent court ruling on his school, "I'd love to hear about it.
"If we would be eligible for the funds, the need is here, so we would definitely be interested in looking further into it."
The State of Colorado has yet to announce whether it will appeal the ruling in the Court of Appeals. The next stop on the process would be for the state to file for an "en blanc" rehearing of the case before the full Court of Appeals. (The ruling was made by a three-judge panel).
The next, and final, destination would be the US Supreme Court, if the nation's highest court decides to hear it.
Both the ADL and AJC are strongly urging Colorado to appeal the decision.
"I'm curious whether the state is going to appeal," Kahn said this week. "We would be happy for that to happen."
Either in the course of that appeal, or perhaps legislatively, Kahn agrees that the state of Colorado will have to draw a clearer line on the definition of "pervasively sectarian," even though in the case of CCU she thinks it's already abundantly clear.
As for the ADL, which had filed an amicus brief in the case that was just overturned, DeBoskey said that a decision hasn't yet been made whether to do the same if another appeal is filed, "but I would predict that this will be the case."
DeBoskey refused to be pinned down when asked to predict the future fate of the case.
"Having practiced law for 25 years, I've long ago given up the practice of predicting what courts will do," he said. "I can only tell you that the opponents are very aggressive in their attack on the wall and are having some success in current day courts. It underscores the importance of our judicial system protecting our precious liberties."
Kahn, for her part, is doubtful that any appeal will reverse the ruling. Her conversations with national AJC officials in the wake of the Denver ruling have made her pessimistic about where the case may be headed.
"They don't think that if it went to the full court, or to the US Supreme Court, that we would win," she said.
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Chris Leppek is assistant editor of the Intermountain Jewish News in Denver.
© 2008, Intermountain Jewish News
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The only ones who are against [the ruling] are those who don't want us to show up and be Jewish. They are the totally secular who are not interested in furthering . . . Jewish life.
