High court draws a line on state-funded religion

Thursday, February 26, 2004

WASHINGTON — Civil liberties groups that advocate separation of church and state are accustomed to mostly bad news from the Supreme Court.

But the news for them yesterday was good, as the Supreme Court ruled 7-2 that states may deny college scholarship money to students majoring in theology.

The Court’s decision in Locke v. Davey may signal that the Court feels it has gone far enough — and should go no further — toward acceptance of public support for religious practices. The ruling was viewed as a setback to the school-voucher movement and to President Bush’s faith-based initiative.

The high court ruling upheld the Promise Scholarship program in Washington state, which gives college scholarship money to needy high school students — except to those students majoring in theology.

“By reaffirming that the failure to fund religious activity is not the same as religious discrimination, today’s decision undermines a key argument that has been used by supporters of so-called faith-based initiatives,” said Steven Shapiro, legal director of the American Civil Liberties Union.

Two years ago in Zelman v. Simmons-Harris, the Supreme Court encouraged voucher supporters by saying that government vouchers could be provided toward tuition at religious schools without violating the First Amendment’s establishment clause. In the Locke case, voucher advocates hoped the Court would take the next step by ruling that states, under the free-exercise clause, were required to include religious schools in voucher programs.

But the Court refused to go that far, instead giving states leeway to establish their own constitutional lines and declining to force states to support religious training. “The state has merely chosen not to fund a distinct category of instruction,” wrote Chief Justice William Rehnquist for the majority.

Rehnquist also said the “play in the joints” between the two religion clauses allows states — but does not require them — to support divinity studies.

“The state’s interest in not funding the pursuit of devotional degrees is substantial and the exclusion of such funding places a relatively minor burden on Promise Scholars,” wrote Rehnquist. “If any room exists between the two Religion Clauses, it must be here.”

Rehnquist noted that the scholarship program does not exclude all religious studies; money may be used for students at religious colleges, including students who take religion courses but do not major in theology. Rehnquist saw “no animus toward religion” in the program.

Justices Antonin Scalia and Clarence Thomas dissented, with Scalia bitterly asking. “What next? Will we deny priests and nuns their prescription-drug benefits on the ground that taxpayers’ freedom of conscience forbids medicating the clergy at public expense?”

But other critics of the ruling interpreted the decision as a narrow one limited to divinity training at the college level, with little impact on the voucher issue.

“There [would have been] a big upside for us in the case, and we did not get that,” said Richard Komer, who wrote a brief in the case for the Institute for Justice and other voucher supporters. But Komer said the fight for vouchers would continue state-by-state, with yesterday’s decision playing a small role if any. He suggested that the effects of Locke v. Davey would be confined to the training of ministers at the college level, with little spillover into the vouchers issue in secondary schools.

“We are very disappointed with a decision that clearly sanctions religious discrimination,” said Jay Sekulow, chief counsel of the American Center for Law and Justice. Sekulow argued in the case on behalf of Joshua Davey, who challenged the Washington state program after being told that his plan to major in theology at Northwest College in Kirkland, Wash., made him ineligible for the scholarship. Davey has since changed his career plans and is now a first-year student at Harvard Law School.

Voucher opponents and advocates of church-state separation celebrated a rare victory from the Court.

“This is a huge defeat for those who want to force taxpayers to pay for religious schooling and other ministries,” said the Rev. Barry Lynn, executive director of Americans United for Separation of Church and State. “Americans clearly have a right to practice their religion, but they can’t demand that the government pay for it.”

In his ruling, Rehnquist gave considerable deference to states in drawing constitutional lines. He used language that could surface in other disputes, possibly including litigation over state decisions on marriage — which, like education, has long been the province of state law. States are entitled to treat religious training differently from other kinds of training in their funding decisions, Rehnquist said.

“Training someone to lead a congregation is an essentially religious endeavor. Indeed, majoring in devotional theology is akin to a religious calling as well as an academic pursuit,” Rehnquist wrote. “Even though the differently worded Washington Constitution draws a more stringent line than that drawn by the United States Constitution, it is scarcely novel.”

Rehnquist cited the “antiestablishment” movement from the nation’s early history that rejected public funding for the training of ministers. That tradition, Rehnquist said, demonstrated that Washington state’s exclusion is “not evidence of hostility toward religion.”

By invoking that period of history, Rehnquist in a sense jumped over a central part of the dispute in Locke v. Davey. The case had been viewed as a key test of so-called Blaine Amendments, enactments from the 19th and early 20th centuries that barred the use of government funds for religion in more than 30 states, including Washington. Briefs in the case quarreled over whether the Blaine Amendments were driven by anti-Catholic sentiment and whether Washington state’s version was the inspiration for the scholarship program’s exclusion of theology majors.

Rehnquist gave that issue short shrift in a footnote that accepted the assertion at oral argument by Washington Solicitor General Narda Pierce that another part of the state constitution — not her state’s Blaine Amendment — was at issue in the case. “The Blaine Amendment’s history is simply not before us,” Rehnquist said.

The Court’s sidestep was a disappointment, said Kevin Hasson, president of the Becket Fund for Religious Liberty, which has targeted state Blaine Amendments around the country. But language in the decision, Hasson said, suggests that a majority of the Court thinks Blaine Amendments were motivated by anti-religious sentiment, “so ultimately our battle will be won.”

But voucher opponents were glad that the Blaine Amendments, which have served as an important legal tool in fighting voucher programs, were left untouched.

“Advocates of private-school vouchers view these state religious-liberty protections as an obstacle to implementing voucher programs in the states,” said Elliot Mincberg, legal director of People for the American Way. “We are pleased that the Court rejected that attack in this case.”

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