High court agrees to settle Part II of voucher battle

Tuesday, May 20, 2003

WASHINGTON — Call it “The Voucher Battle: Reloaded.” The Supreme Court yesterday agreed to consider a case from Washington state that followed almost inevitably from last year’s decision that allowed a state voucher program to be used toward parochial and other private school tuition.

The case of Locke v. Davey will test whether state scholarship programs can specifically exclude theology students from eligibility because of the religious nature of their studies.

After the Supreme Court last year in Zelman v. Simmons-Harris found no First Amendment bar to state voucher programs, the only constitutional weapon left for voucher opponents was at the state level. They dusted off the so-called Blaine Amendments, enacted in 37 states mainly during the 19th century, which impose strict prohibitions on the use of state funds for any religious purpose.

Though their history is somewhat disputed, the Blaine Amendments were enacted at a time when nativist and anti-Catholic sentiments ran high, fueling a desire among Protestant groups to keep Catholic schools from receiving state assistance in any form.

They are known as Blaine Amendments because they were modeled after a federal constitutional amendment proposed by Maine Congressman James Blaine. Blaine’s campaign failed at the federal level in 1875, but Congress passed a law requiring new states to include Blaine-like amendments in their state constitutions — which explains why many western states have them. One corollary of these state constitutional amendments is that at least 14 states, including Washington state, explicitly bar theology students from receiving state scholarships.

To try to remove any remaining obstacle to voucher programs, voucher supporters announced plans to attack these Blaine amendments as a violation of the U.S. Constitution. Challenges to Blaine Amendments or similar enactments are pending in Florida, South Dakota and Michigan. Kevin Hasson of the Becket Fund for Religious Liberty, which is challenging Blaine Amendments nationwide, says that as a result of subsequent legislation and court rulings, only 16 states still have “Blaine or Blaine-like amendments with teeth.”

Meanwhile, as these national strategies have unfolded, the Washington state litigation was moving through the courts. It moved to the head of the line yesterday with the high court’s decision to grant review in the case.

Joshua Davey qualified in 1999 for a Washington state “Promise Scholarship” of $1,125. He was then admitted to Northwest College, a Christian school in Kirkland. But when he declared a double major in pastoral ministries and business administration, school officials knew he would not be eligible for the scholarship because of the state law, and did not seek the money on Davey’s behalf. The state acknowledges that because of his major, it would not have given Davey the scholarship money if the college had applied for its disbursement.

Davey sued, and the district court sided with the state. But last July, the 9th U.S. Circuit Court of Appeals reversed, ruling that the policy discriminated against religion in violation of the First Amendment.

State Attorney General Christine Gregoire appealed the ruling, arguing that under Supreme Court precedents, it was proper for Washington to ban the use of state funds for religious instruction.

“People who want to enter the ministry should pay their own way, not hand the bill to the taxpayer,” said Barry Lynn, executive director of Americans United for the Separation of Church and State. “This case could open the floodgates to massive taxpayer funding of religious institutions.”

Groups that favor vouchers and oppose the Blaine Amendments were somewhat divided in their approach to the Davey case. The American Center for Law and Justice, which represented Davey in the litigation, urged the Supreme Court not to review the case, preferring to leave the favorable 9th Circuit ruling in place while other Blaine Amendment cases made their way through the courts. But the Institute for Justice urged the Court to take the case so as to affirm the 9th Circuit and quickly establish the unconstitutionality of the Blaine Amendments nationwide.

Locke v. Davey is to be argued in the fall, with a ruling unlikely before year’s end.

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