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Since Colorado has decided not to appeal, the 10th Circuit's opinion is the law of the land in only six western states. But the court's logic will reshape church-state discussions until the Supreme Court issues another major ruling on the topic. "The court here went through each of the criteria that Colorado had set up and showed how it created massive entanglement, so this will be influential in looking at those kinds of criteria elsewhere," says University of Missouri law professor Carl H. Esbeck. A former Department of Justice official, Esbeck notes that one of those criteria—hiring those of like-minded faith—is the big battleground over the future of the faith-based initiative.

Senator Barack Obama announced his faith-based initiative plan in July, saying, "If you get a federal grant, you can't use that grant money to proselytize to the people you help and you can't discriminate against them—or against the people you hire—on the basis of their religion." Senator McCain's campaign disagrees, saying, "It is important for faith-based groups to be able to hire people who share their faith."

What's at stake in the dispute is a long-standing policy: the 1964 Civil Rights Act, Clinton-era Charitable Choice laws, and Supreme Court rulings have all supported hiring rights. The Obama plan would create the kind of government entanglement with religion that the Constitution prohibits. Ironically, as the 10th Circuit just pointed out, such a plan would "expressly discriminate among religions" by telling faith-based organizations what beliefs matter regarding their mission to the community.

Just as we commend the 10th Circuit Court for rejecting the Colorado State scholarship policy, we encourage Sen. Obama to modify his faith-based initiative plan. Government is wise to encourage people of faith, along with people of no faith, to contribute to the common good, and to give people of faith latitude in how they embody it in the public square.

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Inside Higher Ed reported on the ruling.

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September 2008, Vol. 52, No. 9