In the

United States Court of Appeals

For the Seventh Circuit

Nos. 09-1102 & 09-1112

BADGER CATHOLIC, INC., formerly

known as Roman Catholic Foundation,

UW–Madison, Inc., et al.,

Plaintiffs-Appellees,

Cross-Appellants,

v.

DAVID G. WALSH, et al.,

Defendants-Appellants,

Cross-Appellees.

Appeals from the United States District Court

for the Western District of Wisconsin.

No. 07-C-505—Lynn Adelman, Judge.

ARGUED OCTOBER 27, 2009—DECIDED SEPTEMBER 1, 2010

Before EASTERBROOK, Chief Judge, and EVANS and

WILLIAMS, Circuit Judges.

EASTERBROOK, Chief Judge. The University of Wisconsin

at Madison charges every student a fee, which goes
2 Nos. 09-1102 & 09-1112

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 nonstudents, such as a bishop. A reorganization eventually
Nos. 09-1102 & 09-1112 3

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.
4 Nos. 09-1102 & 09-1112

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 studentfee 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
Nos. 09-1102 & 09-1112 5

“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
6 Nos. 09-1102 & 09-1112

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 contended, 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 subsidies 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
Nos. 09-1102 & 09-1112 7

secular speech is funded is a form of forbidden viewpoint 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
8 Nos. 09-1102 & 09-1112

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.
Nos. 09-1102 & 09-1112 9

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 university that includes a department of philosophy

but not a department of theology or a seminary. The

University of Wisconsin contends that it has made the

sort of choice that Locke approved.
10 Nos. 09-1102 & 09-1112

That’s not entirely right, and for two reasons. First, the

Court stressed in Locke that the state’s program did not

evince hostility to religion. The scholarships could be

used at pervasively sectarian colleges, where prayer and

devotion were part of the instructional program; only

training to become a minister was off limits. 540 U.S.

at 724–25. The University of Wisconsin, by contrast, does

not support programs that include prayer or religious

instruction. Second, and more importantly, the state’s

decision in Locke concerned how to use funds over

which it had retained plenary control. Choosing which

programs to support and which not, whether by having

a department of philosophy but not a seminary, or by

granting scholarships to study theology but not prepare

for the ministry, is a form of government speech. See

Pleasant Grove v. Summum, 129 S. Ct. 1125 (2009); Illinois

Dunesland Preservation Society v. Illinois Department

of Natural Resources, 584 F.3d 719 (7th Cir. 2009).

That’s why Locke declared that public-forum analysis

was “simply inapplicable.” 540 U.S. at 720 n.3. But the

University of Wisconsin is not propagating its own message; it has created a public forum where the students,

not the University, decide what is to be said. And

having created a public forum, the University must

honor the private choice.

Readers who think that this line is overly formalistic—

selective funding as permissible public choice, versus

selective funding as impermissible restriction on

private choice in a public forum—must recall that the

University of Wisconsin itself persuaded the Supreme

Court to hold that dissatisfied students are not entitled
Nos. 09-1102 & 09-1112 11

to get their student-activity fees back, precisely because

the fees are used to operate a public forum in which

students themselves, and not the University, decide what

is to be said. The Supreme Court gave its imprimatur in

Southworth, with the proviso that the University must

establish neutral rules and not shut out any perspective

that is within the program’s general definition of extracurricular student activity. Just as there is a big difference

between a university as publisher of its own newspaper

and as censor of a student paper—the university may

choose as publisher what goes into the alumni news but

cannot censor a paper or selectively decline to pay where

students are the publishers, see Hosty v. Carter, 412 F.3d

731 (7th Cir. 2005) (en banc)—so a university cannot

shape Badger Catholic’s message by selectively funding

the speech it approves, but not the speech it disapproves. Once it creates a public forum, a university

must accept all comers within the forum’s scope. This is

why, in another decision arising from the University of

Wisconsin’s fee system, we held that the University

is not entitled to exercise a general discretion over

which groups can draw on the funds. See Southworth v.

University of Wisconsin, 307 F.3d 566 (7th Cir. 2002).

The University’s assurance that it will fund discussion

and debate, including discussion with a religious component, because it views discussion and debate as an important part of education, coupled with a declaration

that there is just too much devotional activity in

Badger Catholic’s program, leads us to wonder how the

University would deal with an application by a student

group comprising members of the Society of Friends.
12 Nos. 09-1102 & 09-1112

Quakers view communal silence as religious devotion,

and a discussion leading to consensus as a religious

exercise. Adherents to Islam and Buddhism deny that

there is any divide between religion and daily life; they

see elements of worship in everything a person does.

Now maybe Quakers, Muslims, and Buddhists scorn

the University’s largesse (as Badger Catholic did until

2003), but a constitutional rule must be general enough

to handle all sorts of religion and all choices by student

groups.

We deferred action on this appeal while the Supreme

Court had Christian Legal Society under advisement. It

is the latest in the sequence, beginning with Healy v.

James, 408 U.S. 169 (1972), and extending through

Widmar, Rosenberger, and Southworth, in which colleges

or universities set limits on what student organizations

they would recognize and fund. Healy, which forbade

viewpoint discrimination, did not concern religion, so

we have not discussed it. All the other cases in this sequence concern student groups that engage in sectarian

speech. We wanted to see whether the Court would

modify the approach articulated in Widmar, Rosenberger,

and Southworth. The Court left that approach in place

and reiterated the norm that universities must make

their recognition and funding decisions without regard

to the speaker’s viewpoint. The Justices divided on the

question whether Hastings College of the Law had satisfied the neutrality requirement, but no Justice disagreed

with the propositions that “[a]ny access barrier must

be reasonable and viewpoint neutral” (130 S. Ct. at 2984)
Nos. 09-1102 & 09-1112 13

and that “singl[ing] out religious organizations for disadvantageous treatment” (id. at 2987) is permissible only

if the requirements of “strict scrutiny” can be satisfied.

Christian Legal Society described Widmar as a case

holding that refusing to allow “religious worship and

discussion” in a public forum is forbidden viewpoint

discrimination (ibid.). There can be no doubt after

Christian Legal Society that the University’s activity-fee

fund must cover Badger Catholic’s six contested

programs, if similar programs that espouse a secular

perspective are reimbursed.

This conclusion disposes of the University’s appeal.

Badger Catholic has filed a cross-appeal seeking additional relief. It asked the district court for damages and

an injunction; the judge awarded only a declaratory

judgment. The request for damages founders on the

Supreme Court’s decision that a state (including a state

official sued in an official capacity) is not a “person” for

the purpose of §1983, see Will v. Michigan Department

of State Police, 491 U.S. 58 (1989), which means that damages from the state treasury are not available under that

statute. See, e.g., Lapides v. University System of Georgia,

535 U.S. 613, 617–18 (2002); Arizonans for Official

English v. Arizona, 520 U.S. 43, 69 (1997). The University of

Wisconsin is part of the state, Wis. Stat. §§ 36.01–36.62;

Southworth, 529 U.S. at 221, so damages cannot be

awarded under federal law.

Badger Catholic sees two ways around this. One is

damages from the defendants in their individual capacities. The district court held, however, that in this capacity
14 Nos. 09-1102 & 09-1112

the defendants enjoy the benefit of official immunity.

Divided decisions such as Christian Legal Society and

Locke show that this corner of the law cannot be regarded

as so clear that personal liability is appropriate. “If

judges . . . disagree on a constitutional question, it

is unfair to subject [public officials] to money damages

for picking the losing side of the controversy.” Wilson

v. Layne, 526 U.S. 603, 618 (1999). Accord, Pearson v.

Callahan, 129 S. Ct. 808, 823 (2009).

Badger Catholic’s other avenue to damages is state

law. After the University declined to reimburse some of

its expenses in earlier academic years, the parties

reached an agreement under which Badger Catholic’s

requests would be reconsidered. Badger Catholic

contends that the University has not kept its promise,

and that it is entitled to compensation for breach of contract. Here its problem is that it did not give the

notices required by Wisconsin law. Wis. Stat. §16.007

(claims against the state), §893.82(3) (claims against state

employees). Badger Catholic concedes that it did not

follow the state’s procedures but contends that noncompliance should be excused because the state knew what

relief it wants. We agree with the district court, however,

that Wisconsin does not have a doctrine of constructive

compliance; it requires strict performance of all statutory

conditions to recovering on a contract with the state.

Wis. Stat. §893.82(2m); Riccitelli v. Broekhuizen, 227 Wis. 2d

100, 116, 595 N.W.2d 392, 399 (1999) (treating this statute

as jurisdictional and therefore not amenable to exceptions or excuses).
Nos. 09-1102 & 09-1112 15

As for the choice between declaratory judgment and

an injunction: that’s a matter left to the district judge’s

discretion, see eBay Inc. v. MercExchange, L.L.C., 547 U.S.

388 (2006), which was not abused. A declaratory judgment cannot be enforced by contempt proceedings, but

it has the same effect as an injunction in fixing the parties’ legal entitlements. See Steffel v. Thompson, 415 U.S. 452,

466–71 (1974). Badger Catholic fears that the University

will attempt to dance around the declaratory judgment,

as it has retreated from its assurance to the Supreme

Court in Southworth that the program is implemented

without regard to the speakers’ views. A litigant who

tries to evade a federal court’s judgment—and a declaratory judgment is a real judgment, not just a bit of

friendly advice—will come to regret it. The problem

with issuing an injunction straight off is that the details

required by Fed. R. Civ. P. 65(d)(1)(C) would be considerably more elaborate than the terms of a declaratory judgment. The district judge was not looking

for an opportunity to take over management of the

University’s activity-fee program. If the entry of a regulatory injunction can be avoided by a simpler declaratory

judgment, everyone comes out ahead. See Horne v.

Flores, 129 S. Ct. 2579, 2593–95 (2009) (discouraging the

use of regulatory injunctions in litigation against parts

of state government). If Badger Catholic’s fears come to

pass, then more relief lies in store. For now, however, a

declaratory judgment suffices.

AFFIRMED
16 Nos. 09-1102 & 09-1112

WILLIAMS, Circuit Judge, dissenting. The University

of Wisconsin at Madison has created a forum by designating funds with the goal of enhancing the educational

and extracurricular experience of its students. The line

it has drawn in defining the limits of its forum is viewpoint neutral and constitutionally sound—it neutrally

allows each student group equal access to the student

fund as long as the group identifies activities that are

reasonably within the goals of the limited forum it has

created. Because I believe the panel’s opinion fails to

recognize the University’s power to define the purposes

and goals of its own forum, I respectfully dissent.

I.

As an initial matter, I believe it is important to set out

a brief background on forum analysis and Free Speech,

and to be absolutely clear on what the University will

and will not fund and where it draws the line. The Constitution does not guarantee an unlimited freedom for

private speakers on government property, and sorts

government properties into three categories to determine

the level of review: traditionally public fora, designated

public fora, and limited public fora. Christian Legal

Society v. Martinez, 130 S. Ct. 2971, 2983 n.11 (2010);

Choose Life Ill., Inc. v. White, 547 F.3d 853, 864 (7th Cir.

2008). Speakers may only be excluded from a traditionally public forum such as a park or a public street if

the exclusion meets strict scrutiny. Choose Life Ill., Inc.,

547 F.3d at 864 (citations omitted). Strict scrutiny also

applies when a governmental entity creates a “designated
Nos. 09-1102 & 09-1112 17

public forum” by intentionally opening a nontraditional

space for public discourse. Id. The third category of fora

is the limited public forum, in which the governmental

entity opens property for the use by certain groups or

dedicated to the discussion of certain subjects. Id. In

this limited forum, content discrimination against entire

subject matters is permissible when it preserves the

purpose of the forum, but viewpoint discrimination

is not permitted against speech otherwise within the

forum’s limits. Rosenberger v. Rector & Visitors of the Univ.

of Va., 515 U.S. 819, 829-30 (1995). A student activity fee

such as the one here undisputedly creates a limited

public forum, Christian Legal Society, 130 S. Ct. at 2984,

and not a generally open one.

The University’s forum funds activities that enhance

the students’ educational and extracurricular campus

experiences. The panel begins by stating that the University must reimburse Badger Catholic’s activities on

the same basis it reimburses other student groups. And

it does, irrespective of the group’s religious perspective.

The panel is correct that the University offers funding

for training workshops during the school year and summer breaks, but Badger Catholic is also free to access that

funding and it has. For example, in the 2007-08 year,

Badger Catholic was reimbursed for events titled “Leadership Training Group” and “Mary House Overnight.”

Badger Catholic is also free to access funding that is

provided to student groups that offer student counseling.

Just as Sex Out Loud could access the forum to counsel

students on “health sexuality,” Badger Catholic could

access the forum for activities that counseled students
18 Nos. 09-1102 & 09-1112

from a religious perspective. In the 2007-08 year, Badger

Catholic was reimbursed for various small groups such

as “Breakfast Club,” “Catholic Student Union,” “New

Student Welcome” and “Sunday Night Sexuality.”

The University pointedly does not exclude events or

activities from the forum because they approach leadership training or counseling from a religious perspective.

In fact, Badger Catholic was reimbursed for the vast

majority of the funding it sought in the relevant year,

an amount of money totaling 9% of the total fund.

What the University has not funded are six activities

that do not merely involve, but are mostly “worship,

proselytizing or prayer” because those activities do not

further the forum’s goals. Our task is to determine

whether this line is both viewpoint neutral and reasonable in light of the forum’s purpose of enhancing

the students’ educational and extracurricular campus

experience.

II.

As the panel notes, the Supreme Court recently had the

opportunity to revisit and summarize its jurisprudence

on the limited public forum in Christian Legal Society v.

Martinez, 130 S. Ct. 2971 (2010). I cannot agree, however,

with the panel’s conclusion that “there can be no doubt”

that Christian Legal Society decides the issue here and

believe it is worth taking time to discuss the Court’s

approach to and application of the limited public forum

analysis in a public university setting.
Nos. 09-1102 & 09-1112 19

In Christian Legal Society, the Court discussed the progression of the law in three cases that define the current limitations on a public university’s limited forum. In

Healy v. James, 408 U.S. 169 (1972), the Court held that a

public educational institution exceeds constitutional

bounds when it restricts speech simply because it finds

the views expressed by a group to be abhorrent. Then, in

Widmar v. Vincent, 454 U.S. 263 (1981), the Court relied on

Healy and held that a university could not single out

religious organizations for disadvantageous treatment

as compared to the treatment offered to secular groups.

In reaching this holding, the Court emphasized that a

“university’s mission is educational and decisions of

this Court have never denied a university’s authority

to impose reasonable regulations compatible with that

mission upon the use of its campus and facilities.” Widmar,

454 U.S. at 268. Finally, in Rosenberger v. Rector and

Visitors of the University of Virginia, 515 U.S. 819 (1995), the

Court held that the school had selected journalistic

efforts with religious editorial viewpoints and impermissibly treated them differently than other

journalistic efforts. Put concisely, the Court’s position

after the Healy, Widmar, and Rosenberger line of cases

stands for the idea that “a university generally may not

withhold benefits from student groups because of their []

outlook.” Christian Legal Society, 130 S. Ct. at 2988. The

states retain the right to preserve the property under

their control, however, and they can prevent access to a

self-created forum, as long as “any access barrier” is

“reasonable and viewpoint neutral.” Id. at 2983.
20 Nos. 09-1102 & 09-1112

The panel principally relies on Widmar, but it is important to clarify the circumstances in which that case

arose. Under an Establishment Clause analysis, Widmar

held that there is no constitutional problem if a school,

with a “generally open” forum, allows a religious group

to use a room on a basis open to every other group.

Widmar, 454 U.S. at 274-75. In Widmar, the Court emphasized the University’s creation of a “generally open”

forum, id. at 267-68, and specifically stated that the

basis for its decision was “narrow,” id. at 276. Because

it viewed the forum as being akin to a public park, it

applied a strict scrutiny analysis in finding that the

state’s interest was not sufficiently compelling to

exclude religious groups where all other student

groups had access. Id. at 269-70. The Widmar Court did

refer to the university-created forum as a “limited public

forum” in passing, id. at 272, but the Court confirmed

that it was a case involving restricted access to a public

forum in the next year, Perry Educ. Ass’n v. Perry Local

Educators’ Ass’n, 460 U.S. 37, 45-46, 49 n.9 (1983). The

Supreme Court’s forum analysis has evolved greatly

since then, and now, governmental entities can block

access to a limited public forum as long as the neutral

barrier is viewpoint neutral. Christian Legal Society, 130

S. Ct. at 2983.

The panel reaches its conclusion that the University is

engaging in viewpoint discrimination by stating that

purely religious activities have “little meaning on their

own” and cannot be meaningfully distinguished from

the categories of “dialog, discussion or debate from a

religious perspective” funded by the University. Op. at 3.
Nos. 09-1102 & 09-1112 21

This conclusion degrades religion and the practice

of religion. See Bronx Household of Faith v. Bd of Educ., 492

F.3d 89, 102 (2d Cir. 2007) (Calabresi, J., concurring)

(“Prayer and worship services are not religious viewpoints on the subjects addressed in Boy Scout Rituals or

in Elks Club ceremonies. Worship is adoration, not

ritual; and any other characterization of it is both profoundly demeaning and false.”). If religion, and the

practice of one’s religion, can be described as merely

dialog or debate from a religious perspective, what

work does the Free Exercise clause of the First Amendment do? The Free Speech clause, which provides constitutional protection of the right to discuss and debate

views, would sufficiently protect the right of people to

have “dialog, discussion or debate from a religious perspective.” That cannot be right, and that religion is not

set apart from other forms of dialog or discussion has

never been the position of the Supreme Court. See Sch.

Dist. of Abington Township v. Schemmp, 374 U.S. 203, 217-

218 (1963) (discussing the importance of the First Amendment’s Free Exercise clause); Everson v. Board of Education, 330 U.S. 1, 9-13 (1947) (discussing the history of the

First Amendment and religious liberty in America).

Moreover, there is no need to get into a theological

debate about what worship means and whether there

is truly a secular equivalent to worship. The University

does not deny money to Badger Catholic for expressing

the Catholic version of worship; it denies money to any

group to practice its version of worship. If, as Badger

Catholic claimed at oral argument, a secular form of

worship is possible (for example, a group self-identifies
22 Nos. 09-1102 & 09-1112

as “worshipping” the Yankees), then the University

would have the same neutral basis for declining to

fund that specific worship activity. As should be clear

by now, I have no argument and agree wholeheartedly

with the Supreme Court’s understanding and view that

religion can be a perspective or lens for discussing permissible topics. Good News Club, 533 U.S. at 111 (“[W]hat

matters for purposes of the Free Speech Clause is that

we can see no logical difference in kind between the

invocation of Christianity by the Club and the invocation of teamwork, loyalty or patriotism by other associations to provide a foundation for their lessons.”) (emphasis

added); Rosenberger, 515 U.S. at 831 (“Religion may be

a vast area of inquiry, but it also provides, as it did here,

a specific premise, a perspective, a standpoint from

which a variety of subjects may be discussed and considered. The prohibited perspective, not the general subject

matter, resulted in the refusal to make third-party payments, for the subject discussed were otherwise within

the approved category of publications.”).

The constitutional question, however, is whether the

University is disallowing groups to express a particular

view on a permissible forum topic or whether it is disallowing groups to express any view on a particular

topic. The former is unconstitutional viewpoint discrimination, the latter is constitutionally-permitted content

discrimination. And content discrimination is what

the University is engaging in here by not funding any

worship. The category can be discussed and considered

from many standpoints and perspectives, as it always

has been. See, e.g, Zelman v. Simmons-Harris, 536 U.S. 639,
Nos. 09-1102 & 09-1112 23

723 (2002) (Breyer, J., dissenting) (observing that this

country boasts more than 55 different religious groups

with a significant number of members); Sch. Dist. of

Abington Township v. Schemmp, 374 U.S. 203, 214 (1963)

(“Today authorities list 83 separate religious bodies . . . .”).

The University is not withholding benefits from Badger

Catholic because it has a religious perspective. Badger

Catholic would only have a claim of viewpoint discrimination if the University was choosing to allocate funding

for Presbyterian or Baptist or Jewish religious services

but declining to fund Catholic worship services, for

example, but that is not the case here.

Of course, excluding purely religious practices as a

permissible use in the forum has a disparate impact on

religious groups, as they may be the only groups who

would wish to use the forum for worship. But, it is a

“basic tenet of First Amendment law” that disparate

impact does not, in itself, constitute viewpoint discrimination. Christian Legal Society, 130 S. Ct. at 2971. And

forcing the forum to be open to purely religious activities

would have the converse effect of disparately impacting

non-religious student groups. As the panel states, this

is what the Constitution forbids: “withholding support

of religious speech when equivalent secular speech is

funded is a form of forbidden viewpoint discrimination.”

Op. at 6-7 (citing Rosenberger, 515 U.S. at 828-30) (emphasis

added). Here, there is no equivalent secular speech

funded. To exclude purely religious activities is a categorical, neutral exclusion.

The limited forum here is meant to further the educational and extracurricular experience of students, and
24 Nos. 09-1102 & 09-1112

the forum is limited by the amount of money in the

fund. The University has the discretion to decide that

certain activities are worth funding over others, so long

as its decision-making criteria is viewpoint neutral. As

its funds are limited, it is forced to make these decisions

all the time, and generally, these decisions do not take

on a constitutional dimension even if one group is

denied funding. Cf. Widmar, 454 U.S. at 278-79 (Stevens, J.,

concurring) (“[I]f two groups of 25 students requested

the use of a room at a particular time—one to view

Mickey Mouse cartoons and the other to rehearse an

amateur performance of Hamlet—the First Amendment

would not require that the room be reserved for the

group that submitted its application first.”). Although a

University cannot systematically deny or discriminate

against any group for its views, it can draw lines and

make hard decisions about funding. Given the limits

and goals of the forum, the University’s decision to

draw that line at a category such as purely religious

activity is not unconstitutional. Our task is merely to

decide whether that decision was viewpoint neutral, and

it was. As Justice Stevens stated when discussing the

registered student organization program at Hastings:

The RSO forum is no different. It is not an open

commons that Hastings happens to maintain. It is

a mechanism through which Hastings confers

certain benefits and pursues certain aspects of its

educational mission. Having exercised its discretion to establish an RSO program, a university

must treat all participants evenhandedly. But

the university need not remain neutral—indeed
Nos. 09-1102 & 09-1112 25

it could not remain neutral—in determining

which goals the program will serve and which

rules are best suited to facilitate those goals. There

are not legal questions but policy questions; they

are not for the Court but for the university to make.

Christian Legal Society, 130 S. Ct. at 2998 (Stevens, J., concurring).

The problem, if any, with excluding worship as a category of speech from its forum would lie in how the University and its fund administrators decide which activities constitute “purely religious activity” and which

activities use a religious perspective to approach a more

generally accessible purpose. See Faith Ctr. Church Evangelistic Ministries v. Glover, 480 F.3d 891, 918 n.18 (9th Cir.

2007) (discussing the “specter of inevitable government

entanglement” when the county “encounters some

future application who is less than candid” about its

reasons for accessing the forum). The University must

allow religious student organizations to tackle issues

and debates from their religious perspective, and it recognizes the difficulty in trying to decide which activities

include prayer and proselytizing and worship and

which activities are pure religious practice. But, contrary

to the panel’s repeated assertion that the University

itself has labeled certain activities as off-limits, the University plays no role in labeling activities. Nor has

it refused to pay for activities simply because they

“feature prayer.” Op. at 8. It instead asks the student

groups to self-identify those activities that are worship,

proselytizing, and prayer and then it only declines to
26 Nos. 09-1102 & 09-1112

fund such activities. There is no dispute here that the

only funds Badger Catholic argues it should have received

are those it described to the University when it first

requested funding as involving worship, proselytizing,

and prayer. The University even acknowledges that

Badger Catholic could describe Catholic Mass as “Catholic

perspectives on the world,” and that would probably be

funded, because the University does not test or push

the group when it self-defines an activity. But, when a

group self-identifies an act and elevates it as worship,

then the University rightly respects that.

The funding in dispute is not money that is being used

to program events for the campus, for the organization’s

members, or for overhead costs of keeping the group

running or recruiting new members. This is money

for items self-described as including Mass, the purchase

and distribution of rosary booklets, a retreat described

as an Evangelical Catholic Institute to train attendees

how to evangelize, and private sessions with visiting

priests and nuns from Italy.

The self-identification also takes care of a problem

that the panel sees with Quakers, Buddhists, and other

religions that see no line between religion and daily life.

If the campus Quakers put in a request to have their

worship reimbursed, the University would decline to

fund that request. If on the other hand, the Quakers

described their activity as a discussion with the hopes

of coming to a consensus (see Op. at 11-12), they would

have access to the forum. This decision is left to the group,

and thus, respects the ability of groups to define and

practice their religions. Under the panel’s view, once a
Nos. 09-1102 & 09-1112 27

public university has created a forum, there is no way

for it to constitutionally limit its forum to anything; it

becomes a generally open forum. It must now fund the

worship activities of every group, which opens the

forum to funding requests for the day-to-day activities

of those groups who believe day-to-day activities constitute worship. The panel has effectively commanded

the University to enlarge its forum to include the

worship and other purely religious activities of every

student group.

My belief that the category of “purely religious activity”

is viewpoint neutral is not a call for return to a strict

separation between church and state. See John Witte, Jr.,

That Serpentine Wall of Separation, 101 Mich. L. Rev. 1869,

1903 (2003) (remarking on the Supreme Court shift from

a “wall of separation” between church and state to

other principles of religious liberty such as neutrality

and accommodations). It instead reflects an understanding that the University has made a choice to limit

its forum, in a constitutionally acceptable matter, by not

allowing a group access to the fund in a way that is not

accessible to every group. The Supreme Court has stated

that when access barriers are viewpoint neutral, it is

significant that “other available avenues for the group to

exercise its First Amendment rights lessen the burden

created by those barriers.” Christian Legal Society, 130 S. Ct.

at 2991. Here, the barrier does not create any barrier

for Badger Catholic and other student groups to exercise

their First Amendment rights. And contrary to the

panel’s suggestion that it may not be able to believe the

University when it tells us it will fund discussions with
28 Nos. 09-1102 & 09-1112

religious components, Op. at 11, we can, because the

University does, and it generously does so. The vast

majority of the services and educational opportunities

that Badger Catholic, for example, provides are funded

by the University, to the tune of some $200,000 per year.

The forum the University has created is viewpoint

neutral and reasonable, and that satisfies its constitutional obligations. As Justice Ginsburg pointed out in

Christian Legal Society, “[o]ur inquiry is shaped by the

educational context in which it arises” and judges

should “resist substituting their own notions of sound

educational policy for those of the school authorities

which they review.” 130 S. Ct. at 2988 (internal quotations and citations omitted). She continues, “Schools,

we have emphasized, enjoy a significant measure of

authority over the type of officially recognized activities

in which their students participate.” Id. at 2989. With

deference to the school’s attempt to distribute limited

funds from a student body restless with the continuously increasing tuition and fees, it is reasonable that

the school in this case decided that if a group selfidentifies activities as worship, the University will not

inquire further. It will simply not fund, gift or contribute

to that which the group has self-identified as being

outside the limits of the public forum the school has

created.

III. 

The panel also states that the University would not

violate the Establishment Clause by funding Badger
Nos. 09-1102 & 09-1112 29

Catholic’s purely religious activities. Op. at 9. I agree

with the panel that this is true, because a state can

choose to create an unlimited public forum, Pleasant

Grove City v. Summum, 129 S. Ct. 1125 (2009), and this

would pass the well-known test from Lemon v.

Kurtzman, 403 U.S. 602 (1971). Generally speaking, a

state would not violate the Establishment Clause by

opening such a forum because the forum would have

the secular purpose of enhancing the educational experience of its students, it would not have the primary effect

of advancing or inhibiting religion, and it would not

result in excessive government entanglement with religion. See Zelman v. Simmons-Harris, 536 U.S. 639, 649

(2002); Lemon, 403 U.S. at 612-13. But, this conclusion

does not help us decide whether or not the University’s

limited forum is viewpoint neutral and reasonable. That a

state can choose to fund this category of speech does not

create an obligation for it to do so. Locke v. Davey, 540

U.S. 712, 719 (2004) (“There are some state actions permitted by the Establishment Clause but not required by

the Free Exercise Clause.”). The Lemon test is, after all, a

test of exclusion—it determines whether a state action

violates the Establishment Clause, and holds no position

on state inaction.

The Establishment Clause cases referenced by the

panel do nothing but support this reading. For example,

Zelman holds that “states may allow school vouchers to

be used at religious schools without violating the Constitution.” Op. at 9 (emphasis added). This holding does

not have any bearing on the initial question of whether

a school district must provide parents with vouchers.
30 Nos. 09-1102 & 09-1112

It also does not stand for the proposition that a

school district which does provide vouchers must allow

vouchers to be used at religious schools. Its limited

holding states that such a program, with such a choice,

does not violate the Establishment Clause. Zelman, 536

U.S. at 653.

Locke v. Davey offers even more support to this reading. 540 U.S. at 719. Locke reaffirmed that the Free

Exercise Clause does not impose an affirmative obligation on the state to fund all religious activities of an

organization simply because it has chosen to fund

activities of its secular counterparts. Locke, 540 U.S. at

721. The panel may criticize the state’s decision to

engage in this type of selective funding, Op. at 9, but it is

a permissible constitutional choice. The University had

done nothing to block Badger Catholic’s or any

other group’s right to practice its religion. It has chosen

instead to take a neutral stance on that core constitutional right, which preserves the purpose of the forum

(enhancing educational and extracurricular experiences)

without providing additional benefits to those who

choose to engage in religious practices as opposed to

those who do not.

Though the Establishment Clause might allow the

University to fund the activities in dispute if it chose to

neutrally fund all such purely religious practices by all

groups, it does not require the University to do so

merely because it has created a forum. And, choosing to

have created a forum for the purpose of enhancing students’ educational experience should not obligate the
Nos. 09-1102 & 09-1112 31

University to directly fund religious institutions. The

University maintains the power and discretion to control the purposes and goals of its fund and to

designate the class of speech that is within the forum.

The broad category of purely religious practices, with

the endless number of perspectives with which to

view that category, is a viewpoint neutral access barrier,

and to find otherwise would be to hold that universities

have no power to limit their forums to further the

forum’s goals and purposes. 

IV.

The University has acknowledged how difficult it

has been to delineate a line between funding all activities

and making sure to be viewpoint neutral. I commend

its efforts and believe the line it has drawn is a constitutional one. It has drawn this line with an eye to its state

constitution and its educational mission. Our review

should only be of whether that line creates a neutral

barrier or if it discriminates based on viewpoint. Purely

religious practices, as self-defined by the student group,

is certainly a viewpoint neutral, category of speech. To

fund every group’s varying approaches to their core

religious practices would burden the forum and its purposes to the point of making it impossible to administer.

Excluding this category of speech from the forum is a

neutral barrier as it restricts Badger Catholic’s ability

to access the forum on the same basis as it restricts the

ability of other religious and nonreligious student

groups, such as Sex Out Loud, Jewish Cultural Collec-
32 Nos. 09-1102 & 09-1112

tive, and MultiCultural Student Coalition to use the

forum. The University has created a neutral barrier in

precluding the use of its limited forum for purely

religious practice. This neutral barrier is reasonable in

light of the forum’s educational mission, and it, in my

view, is constitutional. 

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