- The Washington Times - Monday, July 2, 2001

New federal court rulings agree that a "pervasively sectarian" organization may receive public funds as a matter of government neutrality toward religion, a reversal of Supreme Court thinking from the 1970s.
The latest ruling came June 26, when the 4th U.S. Circuit Court of Appeals in Richmond said Columbia Union College, a Seventh-day Adventist school in Takoma Park, Md., must be given access to Maryland state funds provided to other schools.
The court said that despite the college's close ties to a church, providing funds to it under the state's Father Sellinger Program does not establish religion in violation of the Constitution.
The First Amendment "requires government neutrality, not hostility, to religious belief," the appeals court ruling said.
The result in the 9-year-old case adds to a new trend in court thinking, advocates say. Now, the court is less concerned whether an organization is "pervasively sectarian," or very religious, and is more concerned that government not penalize such groups in comparison to other organizations.
Last year, in a 6-3 ruling that allowed Louisiana Catholic schools to receive state funding for secular materials such as computers, Supreme Court Justice Clarence Thomas said in the majority opinion that a history of prejudice was behind penalizing overtly religious organizations.
"It was an open secret that 'sectarian' was a code for 'Catholic,'" he wrote. "This doctrine, born of bigotry, should be buried now."
In the new ruling, the federal appeals court cited Justice Thomas' assertion in the so-called Mitchell case in Louisiana.
"The 4th Circuit has now interpreted that Mitchell, in fact, is saying the 'pervasively sectarian' doctrine is dead," said Curt Levey, legal director for the Center for Individual Rights, which defended Columbia Union. "It has been replaced by something the court has called 'neutrality plus.'" That was a term other justices used in the Mitchell decision on the Louisiana schools.
Mr. Levey said the new federal appeals court ruling is likely to play a major role in the courts if the so-called charitable choice intitiative expands and critics begin to file lawsuits against welfare ministries that take federal funds.
"Everyone is assuming that this ruling is what will apply to the welfare-providing groups," he said.
Under a 1996 charitable choice law, ministry groups may bid for welfare funds without stripping away their religious identity or governance. Opponents, however, say the law violates separation of church and state.
During Senate Judiciary Committee hearings this month, Justice Department lawyer Carl Esbeck said the doctrine of "neutrality" will make it legally "irrelevant" whether a ministry that produces effective welfare results with government funds is "pervasively sectarian" or not.
In the Supreme Court opinion last year, Justice Thomas traced the "pervasively sectarian" doctrine to the early 1900s, when a predominantly Protestant political system sought to restrict Catholic schools, which boomed under high immigration.
The term was used in state laws and courts and then was adopted in the 1970s by the Supreme Court.
The Columbia Union case has roots in the 1971 Sellinger Program, in which Maryland allowed education funding for aspects of its Catholic colleges and universities. The American Civil Liberties Union sued the state to stop the funding, but the Supreme Court's 1976 ruling in Roemer v. Maryland set guidelines for such funding to continue.
In 1992, Maryland's attorney general said Columbia Union was so religious that it had "more formal ties to the church and less institutional autonomy" than required to receive funds, even for secular subjects and materials.
After the ruling in favor of the Seventh-day Adventist college, its president, Randal Wisbey, lauded Maryland's financial aid to independent schools. "We look forward to putting this matter behind us and moving on," he said.

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