The Church/State question

From The Volokh Conspiracy comes this news:...
Tenth Circuit Strikes Down Exclusion of "Pervasively Sectarian" Institutions from Government-Paid Student Scholarships
WEAVER, et al., defendants.

Judge McConnel's decision:...
"The State of Colorado provides scholarships to eligible students who attend any accredited college in the state—public or private, secular or religious—other than those the state deems 'pervasively sectarian.' To determine whether a school is 'pervasively sectarian,' state officials are directed, among other things, to examine whether the policies enacted by school trustees adhere too closely to religious doctrine, whether all students and faculty share a single 'religious persuasion,' and whether the contents of college theology courses tend to 'indoctrinate.' "
"We find the exclusion unconstitutional for two reasons: the program expressly discriminates among religions without constitutional justification, and its criteria for doing so involve unconstitutionally intrusive scrutiny of religious belief and practice."

Judge McConnell might have been channeling Justice Clarence Thomas here. From USSC Mitchell v. Helms:
(Thomas): "One of the dissent’s factors deserves special mention: whether a school that receives aid (or whose students receive aid) is pervasively sectarian. The dissent is correct that there was a period when this factor mattered, particularly if the pervasively sectarian school was a primary or secondary school. Post, at 19—22, 28—29, 33, 38—41. But that period is one that the Court should regret, and it is thankfully long past.
There are numerous reasons to formally dispense with this factor. First, its relevance in our precedents is in sharp decline.
Second, the religious nature of a recipient should not matter to the constitutional analysis, so long as the recipient adequately furthers the government’s secular purpose.
Third, the inquiry into the recipient’s religious views required by a focus on whether a school is pervasively sectarian is not only unnecessary but also offensive. It is well established, in numerous other contexts, that courts should refrain from trolling through a person’s or institution’s religious beliefs.
Finally, hostility to aid to pervasively sectarian schools has a shameful pedigree that we do not hesitate to disavow."

Here's Judge McConnell again: "Because we have held that the challenged statutes violate the First Amendment and have no constitutionally sufficient justification, CCU is entitled to summary judgment for the same reasons the State defendants were ot."

Eugene Volokh: "I should note that the author of the decision, Judge Michael McConnell, is one of the nation's leading Establishment Clause scholars (a reputation built on his career as a law professor)."

Judge McConnell wrote the chapter "Legal and Constitutional Issues of Vouchers" in the Brookings Institution/Urban Institute/CED study Vouchers and the Provision of Public Services. Although the chapter on the economics of vouchers requires technical expertise, most of this work rewards study by interested readers who lack that background.

The Agenda's author was raised in no church, and is a devout materialist. Rather than trying to determine what taxpayers do not want to buy with their K-PhD subsidy, why not define what we are trying to buy, and support that? Are there neutral criteria which funding agencies could use to determine if taxpayers get value for the dollar by their support?

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