The Seventh Circuit issued its long-awaited decision in Badger Catholic case September 1. It is an elegant and refreshing opinion, rightly analyzing the First Amendment issues. The court ruled that the University of Wisconsin-Madison must treat religious student groups equally to nonreligious student groups, in terms of granting them funding for their expression and allowing them space to meet on campus. The Seventh Circuit also ruled that the Establishment Clause does not justify the University of Wisconsin’s discrimination against religious groups. In other words, UW does not show neutrality towards religion by treating religious groups worse than other student groups.
This case involved the student Roman Catholic group on campus, named Badger Catholic (formerly known as the Roman Catholic Foundation). The Seventh Circuit pointed out that the University of Wisconsin promised the Supreme Court ten years ago in Southworth that it would distribute student fee money in a viewpoint-neutral manner. However, as the Seventh Circuit stated, the University “concluded that this promise does not apply to speech that constitutes the practice of religion.” The University believed (wrongly) that it would violate the Establishment Clause if it funded a private group’s “prayer, proselytizing or religous instruction” when funding all the expression of nonreligious student groups. UW officials embarked on a long and extensive effort to scrutinize what occured at Badger Catholic meetings, and to deny funding for meetings containing prayer, proselytizing or religious instruction. Yet the University had no problem funding the “proselytizing” of environmental groups, feminist groups, who also urged students to join their cause.
The Seventh Circuit’s majority decision, written by the influential and respected Chief Judge Frank Easterbrook, rightly ruled that the Constitution requires equal treatment for religious groups, and that the government cannot use the Establishment Clause as an excuse to treat religious groups worse than other private groups. The Seventh Circuit looked for guidance to two landmark Supreme Court rulings: Widmar v. Vincent, in which the Supreme Court ruled in 1981 that the University of Missouri-Kansas City could not deny equal access to a student Christian group to rent meeting space on campus on the same terms and conditions as other student groups.
The Seventh Circuit also relied on Rosenberger v. the University of Virginia, where the Supreme Court in 1995 once again rejected the argument that the Establishment Clause requires UVa to single out religious groups and exclude them from applying for student fee money intended to fund student newspapers on campus.
The Seventh Circuit’s opinion is a sterling restatement of what the Supreme Court has said for at least 30 years that the Constitution requires: equal access for religious groups to forums the government sets up for private groups to express themselves. The University of Wisconsin did not grasp this fact, and instead thought that by accommodating private religious speakers, the University was someone endorsing their religious advocacy. The University does not endorse the private speakers it permits to speak. As the Court put it, “there is a big difference between a university as publisher of its own newspaper, and as censor of a student paper.” The University is not endorsing the religious views of Badger Catholic by allowing it funding the same way it funds the advocacy of other student groups.
It is disappointing that groups like the Alliance Defense Fund and its allies have to keep fighting for the commonsense constitutional principle of equal access for religious groups. The Seventh Circuit’s opinion is an eloquent restatement of that important principle.