WASHINGTON (ABP) — A case the Supreme Court took up Dec. 2 has the potential to create another legal landmark in a critical time for church-state relations, according to a group of First Amendment experts.
The Supreme Court heard oral arguments Dec. 2 in Locke vs. Davey. The day before, the Roundtable on Religion and Social Welfare Policy released a new report analyzing the case and the current state of the law in other areas regarding government funding for religious groups.
“I can't think of another time in recent history when the constellation of issues surrounding church-state relations has been more prominent,” said Richard Nathan, the Roundtable's executive director, in a press event accompanying the report's release.
The case “has the potential to be very significant,” according to Ira Lupu and Robert Tuttle, George Washington University Law School professors who authored the report and serve as the Roundtable's resident legal scholars.
In Locke vs. Davey, the court may decide whether states must, in some circumstances, provide funding for a program of religious education if it provides funding for other sorts of programs.
In the case, Washington resident Joshua Davey received a state-funded tuition grant to attend a Seattle-area Bible college. However, the state revoked the scholarship when Davey declared a double major that included pastoral ministries, citing a provision in Washington's constitution that prohibits the state from spending any money on religious instruction.
Davey sued the state and lost, but the ruling was reversed by the 9th U.S. Circuit Court of Appeals, which said the state's decision violated Davey's right to free exercise of religion.
Washington's constitutional provision is similar to clauses of several other state constitutions, sometimes collectively referred to as “Blaine amendments” by supporters of public money for religious education.
Some such state constitutional provisions were modeled after a 19th-century amendment former Sen. James Blaine of Maine unsuccessfully proposed to the U.S. Constitution. While critics of the so-called Blaine amendments say the provisions had their origins in anti-Catholic bias rampant at the time, opponents of government funding for religious instruction say that argument is an oversimplification and that bad motivations don't necessarily make for bad laws.
The state Blaine amendments are seen by both sides as the last major legal obstacle to government funding for religious schools and other religious organizations.
Many groups that support government funding for religious institutions have filed friend-of-the-court briefs on Davey's side in the case, supporting his argument that Blaine-like state provisions unfairly violate free exercise of religion.
Lupu and Tuttle assert that a broad decision in Davey's favor on free-exercise grounds would have wide-ranging implications.
“The consequences of accepting this argument in its broadest form are sweeping,” the law professors write. “States will be obliged to include religious entities that otherwise meet relevant eligibility requirements in every program — school vouchers, or any sort of services — in which the state includes private secular entities.”
Holly Hollman, general counsel for the Baptist Joint Committee on Public Affairs, said in a Dec. 1 press release that such a decision would be a “quantum leap” for the Supreme Court to make. “It is one thing to say that indirect funding of religious education is permissible; it is quite another to say it is required.”
Hollman's organization as well as several other religious and civil-rights groups that support strict church-state separation have filed friend-of-the-court briefs arguing against a broad ruling in Davey's favor.
“Washington did not deny Davey tuition because he is religious,” Hollman said. “Washington simply made the rational decision that the training of ministers was not an appropriate activity for taxpayers to subsidize.”
Lupu and Tuttle also warn that such an all-encompassing decision could ultimately be a two-edged sword for religious organizations that wish to receive government funding. Accepting Davey's approach, the scholars said, “would make constitutionally suspect every state policy that treats religious activities or institutions differently from their secular counterparts.”
This could lay the legal groundwork for courts to become completely neutral toward religion, Lupu warned at the Dec. 1 press conference. Such a strict “neutrality” doctrine could end up stripping religious institutions of some of the special protections they enjoy under federal law, such as for land use or tax exemption.
A decision in the case, No. 02-1315, is expected by the end of the court's session in June.