"(1) An institution of higher education shall be deemed not to be pervasively *1251 sectarian if it meets the following criteria:
(e) The governing board does not reflect nor is the membership limited to persons of any particular religion.
II. Colorado's Finding That CCU is Pervasivley Sectarian:
"The Commission concluded that CCU failed to meet at least three of the criteria. After examining the syllabi for the theology courses, the commission decided that the courses impermissibly “tend[ed] to indoctrinate or proselytize.” Colo.Rev.Stat. § 23-3.5-105(d). It also concluded that CCU's board of trustees reflected or was limited to a single religion. Id. § 23-3.5-105(e). This was predicated on the judgment that Christianity constitutes a single religion, without regard to denominational differences. Commission officials disagreed among themselves as to whether the university's statement of faith was consistent with a “commitment to principles of academic freedom.” Id. § 23-3.5-105(c). Finally, the commission concluded that because of the chapel attendance required for some of its students, the university impermissibly “required attendance at religious convocations or services.” Id. § 23-3.5-105(b)."
III. The Court's View of Locke v. Davey:
"The opinion thus suggests, even if it does not hold, that the State's latitude to discriminate against religion is confined to certain “historic and substantial state interest[s],” id. at 725, 124 S.Ct. 1307, and does not extend to the wholesale exclusion of religious institutions and their students from otherwise neutral and generally available government support. The Court's language suggests the need for balancing interests: its holding that “minor burden[s]” and “milder” forms of “disfavor”*1256 are tolerable in service of “historic and substantial state interest[s]” implies that major burdens and categorical exclusions from public benefits might not be permitted in service of lesser or less long-established governmental ends. Id. at 720, 725, 124 S.Ct. 1307.
We need not decide in this case whether such a balancing test is necessary or how it would be conducted, however, because the Colorado exclusion, in addition to imposing a far greater burden on affected students, has two features that were not present in Locke and that offend longstanding constitutional principles: the Colorado exclusion expressly discriminates among religions, allowing aid to “sectarian” but not “pervasively sectarian” institutions, and it does so on the basis of criteria that entail intrusive governmental judgments regarding matters of religious belief and practice. See Larson v. Valente, 456 U.S. 228, 246, 102 S.Ct. 1673, 72 L.Ed.2d 33 (1982) (imposing strict scrutiny on governmental decisions that discriminate among religions); NLRB v. Catholic Bishop, 440 U.S. 490, 502-03, 99 S.Ct. 1313, 59 L.Ed.2d 533 (1979) (discussing limitations on the power of the government to base decisions on intrusive questions regarding religious belief or practice).
Locke involved neither discrimination among religions nor intrusive determinations regarding contested religious questions. The scholarship program at issue in Locke excluded all devotional theology majors equally-without regard to how “sectarian” state officials perceived them to be-and therefore did not discriminate among or within religions. Locke, 540 U.S. at 715-16, 124 S.Ct. 1307. Evangelicals and Unitarians, Catholics and Orthodox Jews, narrow sectarians and freewheeling latitudinarians, all were under the same interdiction. And since under the program “[t]he institution, rather than the State, determine[d] whether the student's major [was] devotional,” the State did not engage in intrusive religious inquiry. Id. at 717, 124 S.Ct. 1307.
We therefore reject the argument of the state defendants and their amici that Locke compels affirmance in this case. Although Locke precludes any sweeping argument that the State may never take the religious character of an activity into consideration when deciding whether to extend public funding, the decision does not imply that states are free to discriminate in funding against religious institutions however they wish, subject only to a rational basis test."
IV. Denominational Discrimination:
"From the beginning, this nation's conception of religious liberty included, at a minimum, the equal treatment of all religious faiths without discrimination or preference."
"Many Supreme Court decisions have confirmed the principle. The Court has called neutral treatment of religions “[t]he clearest command of the Establishment Clause.” Larson v. Valente, 456 U.S. 228, 244, 102 S.Ct. 1673, 72 L.Ed.2d 33 (1982); see also Bd. of Educ. of Kiryas Joel Village Sch. Dist. v. Grumet, 512 U.S. 687, 707, 114 S.Ct. 2481, 129 L.Ed.2d 546 (1994) (“It is clear that neutrality as among religions must be honored.”). Such discrimination is forbidden by the Free Exercise Clause as well. Larson, 456 U.S. at 245, 102 S.Ct. 1673 (“This constitutional prohibition of denominational preferences is inextricably connected with the continuing vitality of the Free Exercise Clause”); see also Lukumi, 508 U.S. at 532-33, 113 S.Ct. 2217; Larson, 456 U.S. at 246, 102 S.Ct. 1673 (citing Abington School District v. Schempp, 374 U.S. 203, 305, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963) (Goldberg J., concurring)). The Court has suggested that the Equal Protection Clause's requirement is parallel. See Locke v. Davey, 540 U.S. at 720 n. 3, 124 S.Ct. 1307 (citing Johnson v. Robison, 415 U.S. 361, 375 n. 14, 94 S.Ct. 1160, 39 L.Ed.2d 389 (1974); McDaniel v. Paty, 435 U.S. 618, 98 S.Ct. 1322, 55 L.Ed.2d 593 (1978)). In other words, “no State can ‘pass laws which aid one religion’ or that ‘prefer one religion over another.’ ” Larson, 456 U.S. at 246, 102 S.Ct. 1673 (quoting Everson v. Board of Education, 330 U.S. 1, 15, 67 S.Ct. 504, 91 L.Ed. 711 (1947)). While CCU raises claims under three different constitutional clauses governing religious discrimination, *1258 all of them draw on these common principles. So while the Establishment Clause frames much of our inquiry, the requirements of the Free Exercise Clause and Equal Protection Clause proceed along similar lines."
"By giving scholarship money to students who attend sectarian-but not “pervasively” sectarian-universities,FN5 Colorado necessarily and explicitly discriminates among religious institutions, extending scholarships to students at some religious institutions, but not those deemed too thoroughly “sectarian” by governmental officials. The sole function and purpose of the challenged provisions of Colorado law, Colo.Rev.Stat. §§ 23-3.5-105, 23-3.3-101(3)(d), and 23-3.7-104, is to exclude some but not all religious institutions on the basis of the stated criteria. Employing those criteria, the state defendants have decided to allow students at Regis University, a Roman Catholic institution run by the Society of Jesus, and the University of Denver, a Methodist institution, to receive state scholarships, but not students at CCU or Naropa University, a Buddhist institution. This is discrimination “on the basis of religious views or religious status,” Smith, 494 U.S. at 877, 110 S.Ct. 1595, and is subject to heightened constitutional scrutiny."
"The Colorado law seems even more problematic than the Minnesota law invalidated in Larson. The Minnesota law at least was framed in terms of secular considerations: how much money was raised internally and how much from outsiders to the institution. Here, the discrimination is expressly based on the degree of religiosity of the institution and the extent to which that religiosity affects its operations, as defined by such things as the content of its curriculum and the religious composition of its governing board. Although application of secular criteria does not invalidate a law even if there is a disparate impact, see Children's Healthcare Is A Legal Duty, Inc., v. Min De Parle, 212 F.3d 1084, 1092 (8th Cir.2000), that logic will not save a law that discriminates among religious institutions on the basis of the pervasiveness or intensity of their belief."
V. Entanglement:
"Even assuming that it might, in some circumstances, be permissible for states to pick and choose among eligible religious institutions, a second line of Supreme Court precedents precludes their doing so on the basis of intrusive judgments regarding contested questions of religious belief or practice. As stated by the Court in Mitchell v. Helms: “[T]he inquiry into the recipient's religious views required by a focus on whether a school is pervasively sectarian is not only unnecessary but also offensive. It is well established, in numerous other contexts, that courts should refrain from trolling through a person's or institution's religious beliefs.” 530 U.S. at 828, 120 S.Ct. 2530 (citing Smith, 494 U.S. at 887, 110 S.Ct. 1595); Americans United for Separation of Church & State v. Prison Fellowship Ministries, Inc., 509 F.3d 406, 414 n. 2 (8th Cir.2007) (joined by O'Connor, J.) (same); see also NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 502, 99 S.Ct. 1313, 59 L.Ed.2d 533 (1979) (“It is not only the conclusions that may be reached by the Board which may impinge on rights guaranteed by the Religion Clauses, but also the very process of inquiry leading to findings and conclusions.”); Univ. of Great Falls v. NLRB, 278 F.3d 1335, 1341-42 (D.C.Cir.2002) (same).
[17] 
Most often, this principle has been expressed in terms of a prohibition of “excessive entanglement” between religion and government. See, e.g., Agostini v. Felton, 521 U.S. 203, 232-35, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997); NLRB v. Catholic Bishop, 440 U.S. at 499, 502, 99 S.Ct. 1313. The anti-entanglement rule originated in the context of education, changing with re-interpretations of the famous doctrine of Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971), although it has migrated to other contexts. See, e.g., Rweyemamu v. Cote, 520 F.3d 198, 208-09 (2d Cir.2008) (Title VII of the Civil Rights Act unconstitutional as applied to ordained priest); Schleicher v. Salvation Army, 518 F.3d 472, 474, 477-78 (7th Cir.2008) (Fair Labor Standards Act presumptively excepts “clerical personnel”). At first the prohibition on entanglements was formulated as an independent requirement of the Establishment Clause, later as one element of determining the “effect” of the law in advancing or inhibiting religion. Agostini, 521 U.S. at 232-33, 117 S.Ct. 1997; see also Zelman v. Simmons-Harris, 536 U.S. 639, 668-69, 122 S.Ct. 2460, 153 L.Ed.2d 604 (O'Connor, J., concurring) (discussing history of the “entanglement inquiry.”). Properly understood, the doctrine protects religious institutions from governmental monitoring or second-guessing of their religious beliefs and practices, whether as a condition to receiving benefits (as in Lemon ) or as a basis for regulation or exclusion from benefits (as here). See Carl H. Esbeck, Establishment Clause Limits on Governmental Interference with Religious Organizations, 41 Wash. & Lee L.Rev. 347, 397 (1984).
Most often, this principle has been expressed in terms of a prohibition of “excessive entanglement” between religion and government. See, e.g., Agostini v. Felton, 521 U.S. 203, 232-35, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997); NLRB v. Catholic Bishop, 440 U.S. at 499, 502, 99 S.Ct. 1313. The anti-entanglement rule originated in the context of education, changing with re-interpretations of the famous doctrine of Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971), although it has migrated to other contexts. See, e.g., Rweyemamu v. Cote, 520 F.3d 198, 208-09 (2d Cir.2008) (Title VII of the Civil Rights Act unconstitutional as applied to ordained priest); Schleicher v. Salvation Army, 518 F.3d 472, 474, 477-78 (7th Cir.2008) (Fair Labor Standards Act presumptively excepts “clerical personnel”). At first the prohibition on entanglements was formulated as an independent requirement of the Establishment Clause, later as one element of determining the “effect” of the law in advancing or inhibiting religion. Agostini, 521 U.S. at 232-33, 117 S.Ct. 1997; see also Zelman v. Simmons-Harris, 536 U.S. 639, 668-69, 122 S.Ct. 2460, 153 L.Ed.2d 604 (O'Connor, J., concurring) (discussing history of the “entanglement inquiry.”). Properly understood, the doctrine protects religious institutions from governmental monitoring or second-guessing of their religious beliefs and practices, whether as a condition to receiving benefits (as in Lemon ) or as a basis for regulation or exclusion from benefits (as here). See Carl H. Esbeck, Establishment Clause Limits on Governmental Interference with Religious Organizations, 41 Wash. & Lee L.Rev. 347, 397 (1984).
The Colorado provisions challenged here are fraught with entanglement problems. The most potentially intrusive element of the Colorado statute is the criterion requiring Commission staff to decide whether any theology courses required by the university “tend to indoctrinate or proselytize.” Colo.Rev.Stat. § 23-3.5-105(1)(d). To apply this criterion, the Commission demanded to see syllabi from theology courses at CCU. The record contains two syllabi for “Early Christian Literature,” a course studying “the New Testament as literature.” App. 273. In these courses, the students are asked, for example, to give “big ideas” of all of the books of the New Testament, and “explain how the differences in the various gospels reflect the different theological concerns of the various*1262 writers.” App. 279, 284. The Commission concluded that the course failed the statutory criterion, although it did not explain why. All we know is that one official defined the term “indoctrinate” to mean “to try and convince, to try and convert, to try and get individuals to subscribe to a particular set-to whatever the subject is, in this case, a theological subject or religious subject,” and “proselytize” to mean “to evangelicize (sic), to do more than just educate but to advocate that an individual subscribe to a certain theological point or religious point.” App. 102-03, ¶ 79. To decide that these syllabi were likely “to convince” the students of religious truths, the Commission had to decide how religious beliefs are derived and to discern the boundary between religious faith and academic theological beliefs.
Such inquiries have long been condemned by the Supreme Court. In New York v. Cathedral Academy, 434 U.S. 125, 98 S.Ct. 340, 54 L.Ed.2d 346 (1977), for example, the Supreme Court considered a state statute that reimbursed private religious schools for the costs of in-class examinations and other state-mandated teaching activities only if they were devoid of religious content. The Court held the process of examining the schools' teaching practices for religious content unconstitutional, explaining that “this sort of detailed inquiry into the subtle implications of in-class examinations and other teaching activities would itself constitute a significant encroachment on the protections of the First and Fourteenth Amendments.” Id. at 132, 98 S.Ct. 340. The Court pointed out that “[i]n order to prove their claims for reimbursement, sectarian schools would be placed in the position of trying to disprove any religious content in various classroom materials” and the court “would be cast in the role of arbiter of the essentially religious dispute.” Id. at 132-33, 98 S.Ct. 340. The Court concluded, in words equally applicable to the Colorado statute: “The prospect of church and state litigating in court about what does or does not have religious meaning touches the very core of the constitutional guarantee against religious establishment.” Id. at 133, 98 S.Ct. 340.
More recently, in Rosenberger v. Rector and Visitors of the University of Virginia, 515 U.S. 819, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995), the Court rejected the argument, put forth by the dissent, that a public university must refrain from extending the benefits of a neutral subsidy to a student publication that contained religious “indoctrination” and “evangelis[m],” as opposed to “descriptive examination of religious doctrine.” Id. at 867, 876, 877, 115 S.Ct. 2510 (Souter, J., dissenting) (internal quotation marks omitted). That proposal is similar to the line drawn by the Colorado statute. The majority rejected this idea, noting that “it would require the University ... to scrutinize the content of student speech, lest the expression in question ... contain too great a religious content.” Id. at 844, 115 S.Ct. 2510. “That eventuality,” the Court stated, “raises the specter of governmental censorship,” which “would be far more inconsistent with the Establishment Clauses's dictates than would governmental provision of [assistance] on a religion-blind basis.” Id. at 844-45, 115 S.Ct. 2510.
[18] The same “specter of government censorship” is present in this case, except that it has actually materialized. Commission officials testified that they demanded to see CCU's religious education curriculum, and (for reasons known only to themselves) determined that it “tend[ed] to indoctrinate or proselytize.” App. 103 ¶ 79. The line drawn by the Colorado statute, between “indoctrination” and mere education, is highly subjective and susceptible to abuse. Educators impart information and perspectives to students because they *1263 regard them as true or valuable. Whether an outsider will deem their efforts to be “indoctrination” or mere “education” depends as much on the observer's point of view as on any objective evaluation of the educational activity. Anyone familiar with the varied reactions to the New York Times and FOX News knows how often assessments of objectivity and bias depend on the eye of the beholder. Many courses in secular universities are regarded by their critics as excessively indoctrinating, and are as vehemently defended by those who think the content is beneficial. Such disagreements are to be expected in a diverse society. But when the beholder is the State, what is beheld is the exercise of religion, and what is at stake is the right of students to receive the equal benefits of public support for higher education, the Constitution interposes its protection. The First Amendment does not permit government officials to sit as judges of the “indoctrination” quotient of theology classes."
The same “specter of government censorship” is present in this case, except that it has actually materialized. Commission officials testified that they demanded to see CCU's religious education curriculum, and (for reasons known only to themselves) determined that it “tend[ed] to indoctrinate or proselytize.” App. 103 ¶ 79. The line drawn by the Colorado statute, between “indoctrination” and mere education, is highly subjective and susceptible to abuse. Educators impart information and perspectives to students because they *1263 regard them as true or valuable. Whether an outsider will deem their efforts to be “indoctrination” or mere “education” depends as much on the observer's point of view as on any objective evaluation of the educational activity. Anyone familiar with the varied reactions to the New York Times and FOX News knows how often assessments of objectivity and bias depend on the eye of the beholder. Many courses in secular universities are regarded by their critics as excessively indoctrinating, and are as vehemently defended by those who think the content is beneficial. Such disagreements are to be expected in a diverse society. But when the beholder is the State, what is beheld is the exercise of religion, and what is at stake is the right of students to receive the equal benefits of public support for higher education, the Constitution interposes its protection. The First Amendment does not permit government officials to sit as judges of the “indoctrination” quotient of theology classes."
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