Badger Catholic, Inc. v. Walsh - 620 F.3d 775 (7th Cir. 2010)

Rule:

Underwriting a religious speaker's costs, as part of a neutral program justified by the program's secular benefits, does not violate the Establishment Clause even if the religious speaker uses some of the money for prayer or sectarian instruction.

Facts:

In 2007, the University of Wisconsin at Madison approved Badger Catholic as a registered student organization. Badger Catholic had difficulty in obtaining approval for its budget since the University would not pay for three categories of speech: worship, proselytizing, and religious instruction. Badger Catholic instituted a suit under 42 U.S.C. § 1983. The University contended that funding for prayer, proselytizing, or religious instruction would violate the Establishment Clause of the First Amendment, and that the obligation not to violate the Constitution was a compelling interest that justified a departure from neutrality. The district court entered a declaratory judgment, and concluded that reimbursing the expenses of religious speakers, through a program equally available to secular speakers, would not violate the Establishment Clause, and that, having established a public forum, the University must not exclude speakers who wanted to use the forum for worship. The University appealed. 

Issue:

Would reimbursement of the expenses of religious speakers violate the Establishment Clause? 

Answer:

No.

Conclusion:

Affirming, the court determined that the university's activity-fee fund was required to cover the organization's six contested programs if similar programs that espoused a secular perspective were reimbursed. The district court correctly read the U.S. Supreme Court's decisions in holding that the university would not violate the Establishment Clause by funding the organization's programs. The court concluded that two decisions in particular--Widmar v. Vincent, and Rosenberger v. University of Virginia--supported that conclusion. These decisions disposed of the university's contention that, in refusing to fund the organization's proposed activities, it was engaged in content discrimination rather than viewpoint discrimination. The court rejected the argument that a public agency was entitled to withhold funds from religious speech, even though not commanded by the Establishment Clause to do so. In the case before it, the university was not propagating its own message; it had created a public forum where the students, not the university, decided what was to be said. And having created a public forum, the university was required to honor the private choice.