The Kentucky Supreme Court has held that the state’s General Assembly violated a church-state provision of the Kentucky Constitution by appropriating $10 million to the University of the Cumberlands, a Baptist institution, for the construction of a pharmacy school.
Section 189 of the Kentucky Constitution provides as follows: “No portion of any fund or tax now existing, or that may hereafter be raised or levied for educational purposes, shall be appropriated to, or used by, or in aid of, any church, sectarian or denominational school.” The court held that the University of the Cumberlands was a “church, sectarian or denominational school” in part because of its relationship with the the Southern and Kentucky Baptist Conventions.
The court’s opinion fails to acknowledge that the “religiosity” of colleges and universities varies dramatically. Some schools are owned by a denomination, draw their students and faculty from among those who share their religious beliefs, require students to attend worship services, and intentionally integrate faith and learning. Others have a historical connection to a church, but are otherwise entirely secular. Many schools fall somewhere between these two poles.
Some courts have attempted to distinguish between the “religiously affiliated” and the “pervasively sectarian,” holding that aid to the former is constitutionally permissible while aid to the latter is not. The Kentucky Supreme Court attempted no such distinction (perhaps because the University of the Cumberlands did not argue that it was only “mildly religious” and thus could and should receive state grants consistent with the Kentucky Constitution). The court thereby suggested that all religiously affiliated colleges and universities might be categorically ineligible for direct grants. It will be interesting to see if a case involving a less intentionally religious college or university arises and, if it does, how the courts in Kentucky deal with it.
I am not suggesting that “religiously affiliated” schools should be eligible for such aid while more seriously religious schools should not. Indeed, such line-drawing is inherently unconstitutional; courts should not be making intrusive inquiries for the purpose of measuring a school’s religiosity. Moreover, the existence of a “line” between the two categories of schools creates an incentive to secularize; government influencing religious choices in this way is the very opposite of religious freedom.
The better solution would simply be not to have constitutional provisions that specially discriminate against religious schools in the funding context. It makes constitutional sense to deprive the government of the power to preferentially fund a particular religious school simply because it is religious, but it does not serve genuine religious freedom to categorically exclude religious schools from funding designed to serve legitimate governmental objectives — such as increasing the number of pharmacists in southeastern Kentucky (the purpose of the Kentucky General Assembly’s grant to the University of the Cumberlands).
The Kentucky Supreme Court’s opinion implies that state constitutional church-state provisions always justify discrimination against religion in the funding context — that such discrimination can never violate the Free Exercise Clause of the First Amendment. This is wrong. The court rests its views in this regard upon an overbroad reading of the U.S. Supreme Court’s 2004 decision in Locke v. Davey. In that case, the Court held that the state of Washington did not violate the Free Exercise Clause by withholding otherwise available state-funded scholarships from students training for the clergy. The Court found that the state interest in not funding such training was unique, and that the state was merely choosing not to fund a distinct category of instruction. The same cannot be said of funding the construction of a pharmacy building at a Christian school. Locke v. Davey notwithstanding, the Free Exercise Clause does impose meaningful limits upon the power of government to discriminate against religion in the funding context. Unfortunately, the Kentucky Supreme Court did not adequately appreciate this.
