Flanders, Chad

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Conversations on Jesuit Higher EducationVolume 39 Article 92-1-2011"Controlled by a Creed?"Chad FlandersFollow this and additional works at: http://epublications.marquette.edu/conversationsRecommended CitationFlanders, Chad (2011) ""Controlled by a Creed?"," Conversations on Jesuit Higher Education: Vol. 39, Article 9.Available at: http://epublications.marquette.edu/conversations/vol39/iss1/9When I teacha course atSaint LouisUniversity(SLU) lawschool, Ilike to startthe firstclass with a case from the Missouristate courts. Giving my students a“local angle” is my way of showingthem that the principles they’ll belearning are relevant to issues rightin their own neighborhood. Imaginemy delight, then, when preparing formy class on Religion and the FirstAmendment, I found a case that was-n’t just from Missouri, but thatinvolved my own home institution.The case, Saint Louis University v.Masonic Temple Association, aroseout of SLU’s efforts to secure fundingfor its new sports arena. Predictably,SLU sought state money, in the formof Tax Increment Financing (TIFs). Idon’t pretend to know how thedetails of how that financing works (Ileave that to the tax professors), butthe connection between SLU andgovernment money was apparentlytoo close for comfort for the Masons.They balked and, in good Americanfashion, filed a lawsuit. Funding SLU’ssports arena using public money wasan “establishment of religion,” theyclaimed, something forbidden underthe Missouri constitution.I couldn’t believe my luck. Thecase was perfect. I had been search-ing for cases to introduce my stu-dents to the two big ideas the classwould be covering: first, that bothstate constitutions and the UnitedStates Constitution protect the “freeexercise” of religion and second, thatboth state constitutions and the U.S.Constitution also prohibit the “estab-lishment” of religion. I had alreadyfound my case for free exercise, andMasonic Temple would be my caseabout establishment. Even better, the case demon-strated something I also wanted toemphasize to my students: some-times states will offer slightly differ-ent (sometimes better, sometimesworse) protections for the religiouspeople and institutions. In the caseof Missouri, its “establishmentclause” was more restrictive than theU.S. Constitution’s. Where the U.S.Constitution didn’t specify what itmeant to be an “establishment of reli-gion,” the Missouri Constitution waspretty clear that it meant no fundingto aid of religious institutions. Things looked bad for my dearSLU. But at the same time, I knewthat the arena had been built. I hadeven recently attended a basketballgame there. What happened? Did theUniversity secure extra funding fromsome non-state benefactor (was thatwhy it was called the “Chaifetz”Arena)? Did they find a loophole inthe Missouri Constitution?As it turned out it was the latter,although not in the way I expected. Iknew that it was common for religiousinstitutions to make the argument thateven though they were religious, gov-ernment funding was OK, so long asthat money went to secular projects.My sense was that this was SLU’s bestargument. After all, they weren’t usingthe money to fund repairs to the cam-pus church down the street from thelaw school. They were using it to payfor a basketball arena. I know somepeople treat Billiken basketball as areligion but still...In my mind I had also anticipat-ed the argument that, it turns out, theACLU (which filed an amicus brief inthe case) had made several timesbefore: when you give money to areligious institution, even if they saythat they will spend the money onsecular projects like sports arenas,this still frees up money in the rest ofthe University budget, and some ofthat money will be used for religiouspurposes. The logic was simple: ifSLU has money to spend on its arenacourtesy of the government, thatmeans it can spend other money onrepairs to the church. Governmentends up indirectly funding religionand, under the Missouri Constitution,it can’t do that.So I sat back, ready to see thebattle joined on familiar turf.But as I read on, my predictions“Controlled By A Creed?”Is Saint Louis University a religious institution?By Chad Flanders24 ConversationsI almost couldn’tbelieve my eyes. 1Flanders: "Controlled by a Creed?"Published by e-Publications@Marquette, 2011turned out to be totally wrong. TheMissouri Supreme Court ruled forSLU not because the money wasgoing to a basketball court and not achurch, but because SLU wasn’t areligious institution.I almost couldn’t believe myeyes. SLU not a religious institution?What about the crosses in the lawschool classrooms? What about thepart of the orientation session Iattended last semester emphasizingour Catholic mission? What aboutour web page, which touted SLU asamong the top five Jesuit universitiesin the nation? And what about thosee-mails we faculty always get fromFather Biondi, a Jesuit priest? Yet there it was: the Court ruledthat because SLU was not controlledby a religious creed, it was not a reli-gious institution (the language ofbeing “controlled by a creed” wasfrom earlier decisions, which set thisas the standard for being a religiousinstitution). The Court decided thematter on summary judgment, whichmeant that it thought there was not a“genuine issue of material fact” overwhether SLU was controlled by areligious creed. It might have Jesuitideals and aspirations, the Court con-ceded. But “controlled” by a religion?No way.Reading the decision over againlater, I concluded that the Court’sdecision was probably technicallycorrect. Our daily affairs are notmeticulously run by nuns; we are notgiven marching orders from Rome.Our university’s mission is in a sensespiritual, but it is not first and fore-most to convert students. We wel-come all faiths.But even if the decision was right asa matter of law, it still discomfits me.It seems a lawyerly way out of adeep and important question.Should we be controlled by a creed?Perhaps SLU shouldn’t — and isn’t— controlled by a creed in the waythe Court was talking about. Wearen’t an institution that follows theRule of Saint Benedict. Should we,however, as individual teachers andstudents at a Jesuit university seeourselves as controlled by a creed? I am also discomfited by this possi-bility. I am only in the vaguest sensea Christian, still less a Catholic, andnot a Jesuit. I don’t view it as anypart of my job to proselytize. But I still find it important that SLUidentifies itself as Jesuit. I smile when Ipass the Jesuit Hall down the street,kitty corner to the newly built ChaifetzArena. I grin and try to say hello to thepriests in robes and sandals strollingthrough campus. Our association witha religious order makes us at SLU dif-ferent. It says, probably not as often asit should, that our purpose is not justpreparing students to get the best jobsthat pay the most money. It says thatwe are bound by, if not “controlledby,” a creed which says that the state ofour students’ souls should be ourutmost concern. This is something no govern-ment funding can give us and nocourt decision can take away. Forthat we should be grateful.  ■Conversations 25Chad Flanders, J.D., Ph.D., is an assistant professor at SaintLouis University School of Law. Students and faculty at Saint Louis University.2Conversations on Jesuit Higher Education, Vol. 39, Iss. 1 [2011], Art. 9http://epublications.marquette.edu/conversations/vol39/iss1/9

Controlled by a Creed?

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Controlled by a Creed?

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