The Rev. Paul Simmons couldn’t sit idly by while the Kentucky legislature appropriated $11 million in public funds to support a Baptist university.
It wasn’t because the Louisville resident was against religion or opposed to improving education, but because he wanted to uphold the historic tenets of the Baptist tradition, as well as the U.S. Constitution.
Simmons, an ordained Baptist minister, was deeply disappointed that the University of the Cumberlands (UC), a school affiliated with both the Southern Baptist Convention and the Kentucky Baptist Convention, wanted to accept $10 million from the state for the construction of a pharmacy school and another $1 million for pharmacy scholarships.
Simmons, former president of the Americans United Board of Trustees, is an ardent advocate of religious liberty and thinks other Baptists should be as well. That’s why he joined as a plaintiff in a lawsuit challenging the Bluegrass State’s funding of the Baptist university in a 2006 General Assembly budget bill.
“I expressed my ambivalence about having to go up against present-day practices, but I was doing so in good faith and as a judgment against current Southern Baptist Convention leaders,” he said. “They needed to be reminded of their history and tradition and the reasons for the Baptist witness.”
The litigation eventually made its way to the Kentucky Supreme Court, which has now unanimously held that the legislature’s action violated the separation of church and state.
In an April 22 opinion written by Justice Lisabeth Abramson, the court cited the Kentucky Constitution’s clear provision barring tax aid to religious education. That mandate provides even stronger protection for taxpayers than the federal constitution.
Section 189 states, “[N]o portion of any fund or tax now existing, or that may hereafter be raised or levied for educational purposes, shall be appropriated to, or used by, or in aid of, any church, sectarian or denominational school.”
The justices agreed that the legislature’s grant of $10 million to build a pharmacy school plainly violated this directive. (The court also found that the $1 million for a scholarship program was unconstitutional under a separate provision of the state constitution.)
“Although UC agreed…not to use any of the pharmacy building funds for ‘church, sectarian or denominational’ purposes, this [declaration] cannot change the character of the institution itself,” she wrote. “It is precisely the type of school referenced in Section 189 [of the Kentucky Constitution], and clearly state funds have been ‘appropriated to, or [will be] used by, or in aid of’ the school.”
Abramson concluded, “If Kentucky needs to expand the opportunities for pharmacy school education within the commonwealth, the Kentucky General Assembly may most certainly address that pressing public need, but not by appropriating public funds to an educational institution that is religiously affiliated.”
According to UC spokeswoman Daphne Baird, the Williamsburg, Ky., university will move on.
“Other pharmacy schools are being created and others expanded since the critical need was brought to the attention of the public as a result of this case,” Baird said. “Thus, in our view, we have accomplished our purpose, which was to meet a critical need for pharmacists in the Appalachian area and beyond.”
The University of the Cumberlands v. Pennybacker ruling is the most important church-state decision under the Kentucky Constitution in almost 30 years, according to Louisville attorney David Tachau, who filed the lawsuit in 2006.
“Kentucky’s constitution is more explicit and more emphatic than the federal Constitution about creating a wall of separation between the use of public funds and support for religious secondary and post-secondary schools,” said Tachau, a member of the Americans United National Advisory Council. “Particularly, because this was a well-written, clearly analyzed unanimous decision, it should create an insurmountable barrier in Kentucky to direct public funding of religious schools.
“It should be very helpful,” he added, “in challenging various methods of indirect support for religious schools such as tuition support programs and other subsidies.”
Thirty-seven states have provisions similar to Kentucky’s no-aid clause, which is why the decision is especially promising.
Americans United filed a friend-of-the-court brief in the case, along with the American Civil Liberties Union of Kentucky, arguing that the appropriations were unconstitutional.
The lawsuit was filed just weeks after the legislature passed the budget and following UC’s expulsion of a gay student whose orientation became known after he posted comments about his dating life on the Internet.
With the help of Tachau, the Kentucky Fairness Alliance challenged the state subsidy of the Baptist school. Leaders of the Alliance believed that the university’s religiously based discrimination against gay people bolstered the argument that it should not receive funding from Kentucky taxpayers.
Soon after filing the original complaint, Tachau amended it to include as plaintiffs the Jefferson County Teachers Association and two taxpayers, Simmons and the Rev. Albert M. Pennybacker.
“Kentucky has a strong separationist constitution, but Kentucky politicians and the general public have been terribly remiss in ignoring those provisions,” Simmons said, describing why he wanted to become involved. “The state also has religious groups wanting public money and politicians wanting the votes of religious people, which makes for strong temptations on both sides.
“I could not ignore the issue,” he continued, “since I was reared a Baptist and had taken strong separationist stands in churches I served as pastor or interim pastor. This problem emerged when Baptists saw their money dwindling and were offered public funds to fatten their budgets, and an influential senator was running for office.”
That senator in question is Sen. David Williams (R-Burkesville), a UC graduate and president of the State Senate, who sneaked the funding provisions into the budget at the last minute in an attempt to curry favor with voters in his district.
After the lawsuit was filed, Williams and UC drew backing from an array of Religious Right groups that viewed this as yet another opportunity to advance tax aid to religious organizations.
The Alliance Defense Fund (ADF), a Religious Right legal group founded by radio and TV preachers, intervened in the case on behalf of 13 state legislators.
“Christian schools shouldn’t be discriminated against and denied funding made available to other schools simply because they sincerely hold to their religious beliefs,” said ADF Senior Counsel Brian Raum, after the court heard oral arguments in the case in September 2009. “Funding of private institutions or facilities based solely on their religious affiliation has never been prohibited under Kentucky law, which instead focuses on whether appropriations serve a non-religious purpose, and in this case, they do.”
The ADF recently received a $9.2 million gift from an anonymous family to fund what it calls the “University Project.” The Scottsdale, Ariz.-based organization plans to match that grant and designate a total of $20 million toward the campaign. For years, ADF lawyers have tried to attack church-state separation through public elementary and secondary schools; now they will use this funding to attack the church-state wall in situations involving higher education.
The ADF’s usual allies were also involved in the Kentucky dispute. An attorney from the Christian Legal Society’s litigation arm, the Center for Law & Religious Freedom, argued the case before the Kentucky Supreme Court. And the conservative Becket Fund for Religious Liberty filed a friend-of-the-court brief, arguing that the Kentucky constitutional provision is anchored in anti-Catholicism and therefore not enforceable.
Other Religious Right activists chimed in, too, including Mat Staver, founder of Liberty Counsel and dean of Liberty University School of Law. In 2009, he told OneNewsNow that this case is simply another attempt by Americans United and the ACLU to erase religion from American history.
“In fact,” Staver said, “in this particular situation what we have is a grant coming from the state of Kentucky – and now [these groups are] challenging it, saying that everyone else is eligible to get a grant, everyone else is eligible except for a religious institution solely because of its Christian heritage.”
But in a concurring opinion, Justice Bill Cunningham made it clear that the court’s unanimous decision was in no way “a legalistic swipe at religion.”
Wrote Cunningham, “Nothing could be further from the truth. Decisions like that endorsed by our majority here today have paved the way for religion to grow and prosper in this land of the free.”
The justice then traced the history of religious freedom in the United States, citing preacher Roger Williams who stood up against the Puritans and founded Rhode Island, a colony based on the separation of church and state and true religious liberty.
“There is a grand irony in this case which involves a Baptist-supported college seeking a state-supported pharmacy school,” he said. “Baptists come from a long line of ‘Separatists.’ They fled England to Holland and later to America to escape entanglements with the state.
“The real battle for religious liberty and separation of church and state was in Virginia, the Carolinas, and Georgia,” Cunningham continued. “In those colonies, Baptist preachers were jailed for preaching. It is well-documented that Madison was influenced by the Baptists in drawing up the Bill of Rights – more especially the First Amendment’s separation of church and state. The Baptist vote was pivotal in the adoption of our Constitution and its subsequent Amendments.
“The early Baptists, at least, believed that church and state are mutually beneficial only if they remain distinct and separate in the normal affairs of life,” he concluded. “These deeply rooted tenets could provide the guideposts for our decision here today. They hold that the state provides a favorable atmosphere in which the church can do its work. And the churches, in turn, should produce, through their respective creeds, citizens who will contribute to a stable social order. At the same time, church and state are mutually exclusive.”
That’s exactly the principle that Simmons wanted to uphold.
“I am a product of the Baptist heritage that is strongly separationist,” he told Church & State. “Foy Valentine, former president of AU and of the Southern Baptists’ Christian Life Commission, used to say there were two types of people claiming to be Baptist: the true Baptist believed in separation, the others were only pretenders.”
Concluded Simmons, “[The justices’] comments and the public humiliation from losing the lawsuit may serve to awaken Baptists to the realities of their situation and enable them to re-evaluate the direction of their group for the future. Their involvement with the Religious Right has been a shameful era among Baptists.”