WASHINGTON (ABP) — The Supreme Court appeared closely divided during Dec. 2 oral arguments in a case that could have enormous ramifications for the future of government funding for religious institutions.
All eyes were on Justice Sandra Day O'Connor as attorneys squared off in Locke vs. Davey, a case that originated in Washington state. O'Connor — often a swing vote on difficult church-state issues — asked penetrating questions of attorneys for both sides during the hour-long session.
In the case, Washington resident Joshua Davey applied in 1999 for the 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 elected to spend his scholarship at Northwest College, a Seattle-area Bible college affiliated with the Assemblies of God. However, the state revoked the scholarship when Davey declared a double major that included pastoral ministries.
State officials cited a provision in Washington's constitution that prohibits the state from spending any money on religious instruction. 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.
Although Davey lost his first round in court, he won in the 9th U.S. Circuit Court of Appeals. A three-judge panel of that court ruled 2-1 that the Washington constitutional provision, as well as a state statute applying it to the Promise program, violated Davey's First Amendment right to free exercise of religion.
Washington Gov. Gary Locke (D) then appealed the ruling to the U.S. Supreme Court.
Last year, the high court declared constitutional an Ohio program that provided government scholarships that could be used in private schools, including religious ones. Justices decided that case, known as Zelman vs. Simmons-Harris, on a contentious 5-4 vote.
So the question before the justices in Locke vs. Davey was not whether providing government funding to religious schools via vouchers violates the First Amendment's ban on government support for religion, but whether the government, in some cases, must fund religious education.
O'Connor asked several questions of Washington Solicitor General Narda Pierce to determine if the program was legally similar to the one at question in the Ohio case. “Is it like a voucher program in that sense?” O'Connor inquired. “You give the money to the student and the student decides how to use it.”
Pierce repeatedly attempted to steer the argument back to the question of whether denying state funding for theology studies comprises a violation of First Amendment rights to religious freedom. “This case involves application of public funds,” she told the justices. “All that the State of Washington has done here is to deny funding for theology studies.”
But Justice Antonin Scalia, a vocal opponent of strict church-state separation, said the question should be what he viewed as Washington's impermissible bias against theology students. “You are discriminating between religion and non-religion,” Scalia contended.
The four justices who tend to support stricter interpretations of church-state separation frequently came to Pierce's aid during the arguments. Summarizing a major part of the state's case, Justice Ruth Bader Ginsburg said, “Not everything that the state could do under the establishment clause it must do under the free-exercise clause.”
A decision in Davey's favor could mean significant gains for the movement to provide government-funded vouchers to religious schools and to use pervasively religious charities to perform government-funded social services — two major domestic-policy goals of the Bush administration. In the arguments, Solicitor General Ted Olson sided with Davey on the administration's behalf.
“The Promise Scholarship program practices the plainest form of religious discrimination,” Olsen told the justices, saying the exclusion of theology studies alone from the scholarship program comprises an unconstitutional “religious test” for the receipt of public services.
Jay Sekulow, executive director of the American Center for Law and Justice, argued Davey's case as a question of his religious freedom. However, several justices seemed skeptical of that point, including John Paul Stevens who asked: “How is his freedom to practice religion impaired at all” simply because Davey was denied state subsidy for his theological studies?
Pierce argued Washington's constitutional amendment banning government funding of religious education has the effect of enhancing religious freedom rather than denying it, because it protects the rights of all Washingtonians to refrain from subsidizing religious teachings they may oppose.
“The state has a somewhat different, but concurring, scheme for religious freedom” than the First Amendment's provisions, Pierce said. “It's the same principle — it doesn't become discrimination against religion just because it extends beyond what the establishment clause requires.”
At a press conference afterwards, Davey said, “This is a case about discrimination.” He noted that the case had inspired him to rethink his calling to the pastoral ministry and instead to enroll in Harvard Law School, where he is a first-year student.