WASHINGTON (ABP) — Just like interpretation of the Bible, interpretation of Supreme Court decisions are often in the eye of the beholder.
That observation was borne out Feb. 27 by a group of legal scholars interpreting the court's latest major church-state decision.
In an event sponsored by the Pew Forum on Religion and Public Life and the Roundtable on Religion and Social Welfare Policy, three church-state legal experts gave their views on the Locke vs. Davey, decision, which the justices handed down Feb. 25.
In the case, the court ruled 7-2 that the First Amendment permits — but does not require — states to fund scholarships to religious schools.
The case pitted the state of Washington against one of its residents who was denied a state-funded college scholarship because he had chosen ministerial studies as his major. The court ruled that the state had the right to deny Joshua Davey the scholarship by appealing to a section of its state constitution that forbids government funding of religious instruction.
The justices said in 2002 that state scholarship programs that include religious schools do not violate the First Amendment's ban on government establishment of religion if the funding is done indirectly — through genuine private choices of where to spend the scholarship funds. Davey asked the court to decide whether state bans on such indirect funding violate the First Amendment's assurance of freedom of religious exercise.
The court said it did not, and cited a tradition of similar state laws from the earliest stages of American history that have set more specific limits on government funding of religion than the First Amendment does.
At the Feb. 27 event, George Washington University Law School professor Ira Lupu said such laws created “a church-state separation policy broader than the First Amendment requires.”
The decision makes it harder for advocates of government funding for religious schools and religious charities to push the idea in states with similar constitutional provisions. Many of those advocates — including President Bush's administration — weighed in on Davey's side in the case, asking the justices to overturn such state constitutional provisions.
Anthony Picarello, general counsel of the Becket Fund for Religious Liberty and a proponent of Davey's case, said the justices decided wrongly on those grounds. “You can't give a benefit to everybody and rescind it only — only — for religious people,” he said. “There should be limits on religion getting the back of the hand” from the government.
But Jim Towey, director of the White House Office of Faith-Based and Community Initiatives, said the decision didn't affect the president's efforts to expand government funding of religious charities on the federal level. “It really turned on a unique characteristic of Washington state's Constitution,” he said in a Feb. 26 telephone press conference. “The decision yesterday did not change at all the landscape for President Bush's faith-based initiatives.”
Nonetheless, Lupu and other legal scholars noted that one of the decision's most significant aspects is that it revives a legal idea that had eroded due to previous church-state decisions: The doctrine that religion has a special constitutional role.
In the majority's opinion on the case, Chief Justice William Rehnquist wrote, “the subject of religion is one in which both the United States and the state constitutions embody distinct views — in favor of free exercise, but opposed to establishment — that find no counterpart with respect to other callings or professions. That a state would deal differently with religious education for the ministry than with education for other callings is a product of these views, not evidence of hostility toward religion.”
White House lawyers and other advocates of government funding for religious groups have used opposing “neutrality” or “equality” arguments to urge that singling out religious groups or institutions for special disfavor in the realm of government funding amounts to an unconstitutional discrimination against religion.
But Marc Stern of the American Jewish Congress said that sort of argument is a two-edged sword for religious groups. The problem with such a neutrality doctrine when it comes to government establishment of religion, he said, is “that's had a parallel effect on the free-exercise side.”
He cited recent federal court decisions in which special accommodations for religious groups — such as exemptions to local zoning laws that many houses of worship enjoy — were overturned on the basis of neutrality. “Therefore, religion doesn't get special protection,” said Stern, whose organization wrote a brief opposing Davey's position.
But with the Locke vs. Davey opinion, Stern added, “We've gotten a fair amount of relief on these challenges to free-exercise protections.”
However, Towey said the decision did not endanger the basis for faith-based group funding because its scope was limited. “The court decision was so carefully written to apply in a very narrow case, which is in the training of ministry — that you don't want state-supported clergy,” he said.
But Lupu said the decision marked another salvo in “a war between two religious-liberty paradigms” — equality versus religious distinctiveness — and that the opinion “certainly fuels the argument for religious distinctiveness.”