In a 2-1 decision yesterday in
Badger Catholic, Inc. v. Walsh, (7th Cir., Sept. 1, 2010), the U.S. 7th Circuit Court of Appeals invalidated a University of Wisconsin policy that withheld student activity fee funding for worship, proselytizing or religious instruction by recognized student groups. The majority opinion, written by Judge Easterbrook, concluded that the University acted improperly in refusing to fund certain programs of a Catholic student group. The group, Badger Catholic, was formerly known as the Roman Catholic Foundation. The majority held that funding religious programs on the same basis as programs of other student groups does not violate the Establishment Clause, and that the University must fund the Catholic group's programs if similar programs that espouse a secular perspective receive money. The majority held however that an award of damages is not available to plaintiffs. They may obtain only a declaratory judgment or injunction as relief.
Judge Williams, dissenting, argued that while it is not required to do so, the University may create a limited forum and exclude worship from it because the practice of religion does not serve the purpose of the limited forum. She argued that the majority's treatment of purely religious activities as being merely a species of dialog, discussion or debate "degrades religion and the practice of religion." She asks:
If religion, and the practice of one’s religion, can be described as merely dialog or debate from a religious perspective, what work does the Free Exercise clause of the First Amendment do?
The
Chronicle of Higher Education reports on the decision.
