N othing in the Constitution’s requirement that government act neutrally with respect to religion further necessitates that officials also practice hostility against people of faith. Indeed, the Constitution prohibits such hostility.

Last month, though, the 10th U.S.  Circuit Court of Appeals slapped down the Colorado Commission on Higher Education for an egregious mistake on just that subject. Government officials nationwide ought to heed the lesson.

The always-brilliant Judge Michael McConnell began the decision in Colorado Christian University v. Weaver with a crucial declarative sentence: “The State of Colorado provides scholarships to eligible students who attend any accredited college in the state — public or private, secular or religion — other than those the state deems ‘pervasively sectarian.’ ”

The entire problem arises from making government officials determine what does and does not amount to “pervasive” sectarianism. That provision effectively asks officials to distinguish among religious practices to decide which of them passes muster. Such a degree of state entanglement with religion should ring immediate warning bells.

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In actual practice, the violation is even clearer. McConnell describes what eventually happened: “State officials have extended scholarships to students attending a Methodist university and a Roman Catholic university run by the Jesuit order. [But] they have refused scholarships to otherwise eligible students attending a non-denominational evangelical Protestant university and a Buddhist university.”

State officials advanced all sorts of explanations for why nondenominational Colorado Christian University is considered “pervasively sectarian” but the Jesuit college is not. But each attempted explanation merely dug a deeper hole.

The commission examined the content of the school’s theology courses and determined that they failed the law’s prohibition against courses “that tend to indoctrinate or proselytize.”

That prohibition, McConnell explained, “is expressly based on the degree of religiosity of the institution and the extent to which that religiosity affects its operations” — or, in other words, on “the pervasiveness or intensity of their belief.”

What’s wrong with that? It requires government officials to make essentially religious judgments. And that, of course, directly violates the Constitution’s prohibition against the government’s interfering with the “free exercise” of religion or creating an “establishment” favoring one religion over another.

The judge quoted from the 1977 Supreme Court case of New York v. Cathedral Academy, to this effect: “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.”

Writing that the “specter of government censorship” has “actually materialized” in this case, McConnell continued thusly: “The line drawn by the Colorado statute, between ‘indoctrination’ and mere education, is highly subjective and susceptible to abuse. … The First Amendment does not permit government officials to sit as judges of the ‘indoctrination’ quotient of theology classes.”

State officials countered that their entire goal was to avoid “excessive entanglement” between religion and government by making sure that state funds did not promote religion. And they cited the landmark 2004 Supreme Court case of Locke v. Davey, which allowed the state of Washington to refuse similar scholarships to students studying for devotional degrees.

McConnell eviscerated those arguments. First, he noted that Washington (in Locke) did not distinguish among religions, nor did it burden students at religious colleges more than those at secular colleges.

Instead, it only ruled out the use of its state funds for a particular course of study, one leading to a clergy position for any religion — with all faiths treated equally. Furthermore, Washington specifically allowed the college itself to define “whether the student’s major is devotional.” Therefore, the government was not in the position of making religious judgments.

Addressing the funding argument, the judge noted that in the Colorado scholarship program, “the aid is designed to assist the student, not the institution.” The scholarship in no way entangles the government with religion unless the government gets involved in value judgments about how religious a school may be before it is “pervasively sectarian.” It is the restrictions on the scholarship, not the scholarship itself, that creates the entanglement that violates the Constitution.

The abuse became quite stark when the state ended up favoring students at several religiously affiliated institutions over those at two others.

Making such determinations, McConnell wrote, involves the government in “matters about which it has neither competence nor legitimacy.” Put more bluntly, government hostility against religion is by its very nature illegitimate.

Quin Hillyer is associate editorial page editor of The Examiner. He can be reached at qhillyer@dcexaminer.com.