WASHINGTON (ABP) — The Supreme Court ruled Feb. 25 that, while the First Amendment may allow a state to fund scholarships to religious schools, it doesn't require all states to do so.
In their Locke vs. Davey decision, the justices handed a major victory to supporters of strict church-state separation and a significant defeat to the Bush administration and other proponents of government funding for religious enterprises. The decision — a surprise both in its timing and in its lopsided 7-2 margin — was handed down less than three months after the court heard oral arguments in the case.
It 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 Davey the scholarship by appealing to a section of its state constitution that forbids even indirect government funding of religious instruction.
The court's opinion cited the history of state laws from around the country that explicitly forbid the imposition of taxes to pay for clerical salaries or training. The justices said Washington had a compelling state interest in maintaining that tradition.
“Given the historic and substantial state interest at issue, we therefore cannot conclude that the denial of funding for vocational religious instruction alone is inherently constitutionally suspect,” wrote Chief Justice William Rehnquist, who authored the majority's opinion.
In the case, Joshua Davey applied in 1999 for the state's Promise Scholarship Program, which provides state-funded tuition grants, or vouchers, to disadvantaged Washington students. The scholarships may be spent at any accredited Washington college, including religious ones.
Davey qualified for the scholarship and elected to spend it at Northwest College, a Seattle-area Bible college affiliated with the Assemblies of God. However, the state revoked the grant when Davey declared a double major that included pastoral ministries. State guidelines for the program permitted it to be spent at religious schools but not for pre-ministerial courses of study.
Davey then sued the state with the help of the American Center for Law and Justice, a legal-advocacy group founded by Religious Right leader Pat Robertson. Among other claims, he contended that being denied the scholarship simply because he was training to be a pastor violated his First Amendment right to free exercise of religion.
In 2002, the Supreme Court upheld the constitutionality of an Ohio program that provided vouchers for use in private schools, including religious ones. Justices decided that case, known as Zelman vs. Simmons-Harris, on a contentious 5-4 vote.
However, in the Davey case, the court was deciding not whether states may engage in funding religious scholarships, but whether they must.
The court said Davey's case presented an example of the inherent tension between the First Amendment's two religion clauses — the establishment clause, which prevents government support of religion; and the free-exercise clause, which prohibits the government from denying its citizens freedom of religious practice.
“[W]e have long said that 'there is room for play in the joints' between [the two clauses],” Rehnquist wrote. “In other words, there are some state actions permitted by the establishment clause but not required by the free-exercise clause.”
The court disagreed with Davey's contention that Washington state displayed unconstitutional animus toward religion because it singled out those training for religious vocations for special disfavor. The justices said Washington has the right to treat ministerial training differently because the U.S. Constitution treats religion differently.
“[T]he 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,” Rehnquist wrote. “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.”
However, Justice Antonin Scalia disagreed, in a forceful dissenting opinion.
“Let there be no doubt: This case is about discrimination against a religious minority,” Scalia wrote. He was joined in his dissent by Justice Clarence Thomas.
“When the state makes a public benefit generally available, that benefit becomes part of the baseline against which burdens on religion are measured,” Scalia said. “[A]nd when the state withholds that benefit from some individuals solely on the basis of religion, it violates the free-exercise clause no less than if it had imposed a special tax.”
But the decision elated advocates of church-state separation.
“It is an extremely important and positive development in church-state law,” said Holly Hollman, general counsel for the Washington-based Baptist Joint Committee on Public Affairs. “I do think it is likely to have an impact on the current debates about vouchers and funding of religious charities.”
Proponents of government funding for religious groups — including the Bush administration — had weighed in on Davey's side in the case. Several states have constitutional provisions similar to Washington's that present a barrier to funding of religious schools and charities, and voucher supporters had hoped the case would provide the chance to overturn those provisions.
Hollman said another crucial aspect of the opinion was its strong endorsement of the idea that religion has a special constitutional role. “I think one of the best things is that the court so soundly rejected the idea that to treat religion differently was the same as hostility toward religion,” she noted. “That idea that [it is discrimination] anytime religion is treated differently is something that has become very popular in political debates, and this should at least temper that.”
Had the court instead ruled in Davey's favor, the decision could have caused a broad re-ordering of church-state law, forcing states to fund religious enterprises.