Appeals from the United States District Court for the Western District of Wisconsin. No. 07-C-505-Lynn Adelman, Judge.
The opinion of the court was delivered by: Easterbrook, Chief Judge
Before EASTERBROOK, Chief Judge, and EVANS and WILLIAMS, Circuit Judges.
The University of Wisconsin at Madison charges every student a fee, which goes into funds for extracurricular activities. The fund dedicated to student services (such as counseling and tutoring) distributes about $2.5 million annually. Many of the recipients use the money to offset the costs of speech: funded organizations include FH King (which promotes sustainable agriculture), the MultiCultural Student Coalition (which promotes "social justice and the principles of unity, integrity, responsibility, and respect"), and Sex Out Loud (which promotes "healthy sexuality"). When some students objected to paying for other students' speech, the University defended its program as creating a public forum that advances its academic mission using viewpoint-neutral criteria. The Supreme Court accepted this assurance that funds are distributed without regard to the speakers' perspectives and concluded that a neutral, forum-creating program could be funded by a uniform fee collected from each student. University of Wisconsin v. Southworth, 529 U.S. 217 (2000).
Among the applicants for funds at the University's Madison campus is a student organization that, when it applied for recognition as a "registered student organization" eligible for money, was known as the University of Wisconsin Roman Catholic Foundation. In 2007 it changed its name to Roman Catholic Foundation, UW--Madison. Last year the group became Badger Catholic. We use the current name, which has the virtue of brevity if not stability. Badger Catholic's application for student-organization status was rejected because its members and officers included some non-students, such as a bishop. A reorganization eventually satisfied the University that students are in control, and the University's Chancellor approved Badger Catholic as a registered student organization in 2007. To be eligible for reimbursement, a group must submit a budget for the approval of student government and eventually the administration. Badger Catholic has had trouble with this process. Each budget has been rejected at least in part by the student government, the administration, or both on the ground that much of Badger Catholic's speech is religious in character. The University won't pay for three categories of speech: worship, proselytizing, and religious instruction. It is willing to use student activity fees for what it calls dialog, discussion, or debate from a religious perspective, but not for anything that it labels worship, proselytizing, or religious instruction.
These categories have little meaning on their own, but examples demonstrate where the University has drawn the line. One of the district court's opinions sets out the six specific programs for which the University has refused to reimburse any of the group's expenses. 590 F. Supp. 2d 1083, 1088--89 (W.D. Wis. 2008). One program is called "mentoring for busy students" and entails meetings between students and "one of the spiritual directors for spiritual mentoring/counseling and to talk about anything they wanted for a half-hour. The spiritual directors included Catholic nuns and priests who would offer guidance or prayer if requested by the student." Another program was a summer retreat for leadership training. During the four-day retreat, three masses were said and four communal prayer sessions held.
Although the University promised the Supreme Court in Southworth to distribute funds without regard to the content and viewpoint of the students' speech, it has concluded that this promise does not apply to speech that constitutes the practice of religion. In response to Badger Catholic's suit under 42 U.S.C. §1983, the University (as we call the defendants collectively) contended that funding for prayer, proselytizing, or religious instruction would violate the Establishment Clause of the First Amendment (applied to the states through the Fourteenth Amendment), and that the obligation not to violate the Constitution is a compelling interest that justifies a departure from neutrality. The district court concluded, however, that reimbursing the expenses of religious speakers, through a program equally available to secular speakers, does not violate the Establishment Clause, and that, having established a public forum (which is how Southworth treats the student-fee program), the University must not exclude speakers who want to use the forum for worship. 578 F. Supp. 2d 1121 (W.D. Wis. 2008), reconsideration denied, 590 F. Supp. 2d 1083 (W.D. Wis. 2008).
The court entered a declaratory judgment providing that the University must reimburse Badger Catholic's activities on the same basis as it reimburses other student groups. The University is free to decline funding for all summer retreats; if it does not pay for training workshops over the summer for members of FH King, it need not pay for Badger Catholic's retreats either. Likewise, if the University refuses to fund a group such as Sex Out Loud that counsels students to engage in "healthy sexuality" (and distributes contraceptives to reduce the risk), it need not fund a group that counsels from a religious perspective. If the University decides that no student group should receive more than 1% of the fund, or some dollar cap, it could apply that neutral rule to Badger Catholic in common with all other claimants on the limited pot. But having decided that counseling programs are within the scope of the activity fee, the University cannot exclude those that offer prayer as one means of relieving the anxiety that many students experience.
The district court correctly read the Supreme Court's decisions in holding that the University would not violate the Establishment Clause by funding Badger Catholic's programs. Two decisions in particular-Widmar v. Vincent, 454 U.S. 263 (1981), and Rosenberger v. University of Virginia, 515 U.S. 819 (1995)-support that conclusion.
The University of Missouri at Kansas City allowed student groups to use its facilities, but it withheld permission for a group called Cornerstone, which wanted to use a meeting room for "religious worship and religious discussion." Widmar, 454 U.S. at 265. (Cornerstone's normal program included "prayer, hymns, Bible commentary, and discussion of religious views and experiences", id. at 265 n.2.) The University of Missouri contended, just as the University of Wisconsin has done, that any subsidy to worship would violate the Establishment Clause-and it added that providing a rent-free room on campus is a subsidy as surely as the transfer of cash to pay for renting a room off campus. The Justices agreed with the premise that a free room is a form of subsidy but not with the conclusion that a subsidy violates the Establishment Clause. As long as the University makes facilities equally available to secular and sectarian groups, the Court held, there is no constitutional problem. Indeed, Widmar added, excluding a religious speaker would amount to content discrimination, which is forbidden in a public forum such as the one the University had established. Cornerstone therefore was entitled to a room where its members could meet, pray, sing hymns, and proselytize.
A decade after Widmar, the University of Virginia declined to pay for the expense of printing Wide Awake, a religious newspaper that a student group published in an effort to educate and convert other students (in other words, to proselytize). The University of Virginia conceded that this was content discrimination but con-tended, just as the University of Wisconsin has, that by devoting part of the student-activity fund to religious speech, it would violate the Establishment Clause. Although Widmar was seemingly against it, the University of Virginia contended that there is a difference of constitutional magnitude between providing services in kind (such as making meeting rooms available) and handing over cash or reimbursing a religious speaker's expenses. The Supreme Court rejected that effort to distinguish Widmar, holding that cash and in-kind subsi-dies must be treated identically. 515 U.S. at 832--34. And the Court reiterated Widmar's conclusion that withholding support of religious speech when equivalent secular speech is funded is a form of forbidden view-point discrimination. Id. at 828--30.
Decisions since Rosenberger reinforce its conclusion that 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. One good example is Zelman v. Simmons-Harris, 536 U.S. 639 (2002), which held that states may allow school vouchers to be used at religious schools without violating the Constitution, when the decision about which school to attend reflects a private choice about how best to educate children. Similarly, Good News Club v. Milford Central School, 533 U.S. 98 (2001), held that a school would not violate the Establishment Clause by providing facilities to a religious group, which proposed to use them for singing religious songs, praying, and memorizing scripture, when the facilities were equally available to secular groups-and Good News Club added that any departure from neutrality would be viewpoint discrimination that is forbidden in a public forum, which the school district created by allowing private groups to use its facilities. See also Witters v. Washington Department of Services for the Blind, 474 U.S. 481 (1986) (reimbursing the tuition of a theology student does not offend the Establishment Clause, when the scholarship is part of a program that is neutral with respect to religion and the student chooses where to use the scholarship).
These decisions dispose of the University's contention that, in refusing to fund Badger Catholic's proposed activities, it was engaged in content discrimination rather than viewpoint discrimination. Two district judges have handled parts of this litigation. Judge Shabaz called the University's distinction viewpoint discrimination. 2008 U.S. Dist. LEXIS 4137 (W.D. Wis. Jan. 17, 2008).
After the suit was transferred when Judge Shabaz stopped hearing cases, Judge Adelman called it content discrimination. 578 F. Supp. 2d at 1137. Both judges thought the discrimination unconstitutional.
The Supreme Court is not always clear about the difference; in Rosenberger it said that "[v]iewpoint discrimination is [just] an egregious form of content discrimination." 515 U.S. at 829. Elsewhere it has held that content discrimination can be part of a lawful system of allocating limited funds; this is why a university could decline to pay for any retreats or counseling, if the content of the speech would place it outside the scope of the program. (One example, from Christian Legal Society v. Martinez, 130 S.Ct. 2971, 2998 (2010) (Kennedy, J., concurring): A university can decline to pay for an art historian to address a conference devoted to public transit, because the art historian's perspective is outside the scope of the conference.) A university can define the kind of extracurricular activity that it chooses to promote, reimbursing, say, a student-run series of silent movies and a debate team, while leaving counseling to the student-health service that the university operates itself. But the University of Wisconsin has chosen to pay for student-led counseling, and its decision to exclude counseling that features prayer is forbidden under Widmar and its successors. The label applied to that discrimination is unimportant.
Although the University's main theme in the district court was that reimbursement would violate the Establishment Clause, its main theme on appeal is that a public agency is entitled to withhold funds from religious speech, even though not commanded by the Establishment Clause to do so. Zelman held that a state is entitled to offer school vouchers that can be cashed at sectarian schools but not that it is required to do so. Arguments such as Professor (then judge, and now professor again) McConnell's that the Constitution requires a state to follow a principle of neutral funding have not carried the day at the Supreme Court. See Michael W. McConnell, The Selective Funding Problem: Abortions and Religious Schools, 104 Harv. L. Rev. 989 (1991).
One recent illustration of the Justices' willingness to allow states to exclude some religious uses from public expenditures is Locke v. Davey, 540 U.S. 712 (2004). A state program of college scholarships had a proviso: the money could not be used to study for the ministry. The Court held that although the state could have allowed the money to be spent for studies in devotional theology (citing Witters), the restriction was compatible with the Free Exercise Clause, because "there are some state actions permitted by the Establishment Clause but not required by the Free Exercise Clause." 540 U.S. at 719. By choosing not to use public funds to train ministers, the state was making a choice no different from operating a ...