4th Cir rules in Columbia Union College v. Clarke

[Michael McConnell]

Eugene's summary of the Columbia Union College case (an extremely
interesting case, which should be required reading for everyone on
this list, if only to show, once again, how dysfunctional the old
tired Lemon paradigm of the Establishment Clause is) leaves out an
important detail. Wilkinson, in dissent, did not merely argue that
the district court's slapdash holding (on summary judgment) that the
college is pervasively sectarian was correct; he based this on the
claim that a detailed inquiry into pervasively sectarianness violates
constitutional principles (essentially as an excessive entanglement).
In effect, Wilkinson argues:
(1) the best solution is equal funding, but the Supreme Court hasn't
quite embraced that, yet
(2) the worst solution is to give or deny funding based on a detailed
inquiry into how religious an institution is, so
(3) the best a lower court can do is decide the question of pervasive
sectarianness on a crude, seat-of-the-pants basis. (He doesn't put it
that way.)

The remand might well be ugly. Maryland funds all its Catholic
colleges, despite the fact that on many points they are as sectarian
as Columbia Union (a Seventh Day Adventist college). So, presumably
the litigation will not only involve an intensive examination of the
curriculum, hiring practices, and everything else of Columbia, but of
the other religious colleges as well. It is hard to see such an
inquiry as advancing the cause of religious freedom.

-- Michael McConnell (U of Utah)