EC & Compelling Interest

Rick Duncan nebraskalawprof at
Mon Jul 23 20:42:36 PDT 2007

  Colorado has a college scholarship program that can be used to attend any public or private college including non-pervasively sectarian religious colleges but excluding pervasively sectarian religious colleges. In other words, students who attend non-pervasively sectarian (but nevertheless sectarian) religious colleges receive funding but those who attend "pervasively sectarian" colleges may not use their scholarships.
  The dist ct held that this amounts to denominational discrimination contrary to Larson and  the "clearest command" of the EC, but that the state's interest in not funding pervasively sectarian education was a compelling interest that trumped the federal EC.
  Can this decision be correct? Does Colorado's interest in discriminating among religious colleges really trump the clearest command of the EC forbidding such denominational discrimination? Or, to paraphrase Doug Laycock, is this nothing more than the state saying "we disagree with the EC as it has been interpreted by the SCt?"
  Rick Duncan

ArtSpitzer at wrote:
  It seems to me that if a state says, "we'll give grants to any social service agency that operates a 24/7 pregnancy prevention hotline," and denomination X says "we'd like a grant, but our faith forbids us from operating anything on the sabbath," and the state says "too bad, then," that's not what the Constitution forbids as "denominational discrimination."  Some denominations just can't qualify for the terms of the grant.  I don't know the Colorado Christian University case but it sounds like the same sort of thing.

Art Spitzer

In a message dated 7/23/07 10:54:49 PM, nebraskalawprof at writes:

  Okay, Doug, then how do you decide the Colorado Christian University case in which the state has engaged in denominational discrimination against pervasively sectarian schools, but claims to have a state anti-establishment compelling interest (in not funding sectarian schools) that trumps the federal EC violation?
Is this a case in which the state compelling interest in not funding certain religious colleges is merely a disagreement with the clearest command of the federal EC prohibiting denominational discrimination?

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  Rick Duncan 
Welpton Professor of Law 
University of Nebraska College of Law 
Lincoln, NE 68583-0902
"It's a funny thing about us human beings: not many of us doubt God's existence and then start sinning. Most of us sin and then start doubting His existence."  --J. Budziszewski (The Revenge of Conscience)
  "Once again the ancient maxim is vindicated, that the perversion of the best is the worst." -- Id.

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