Theology-studies case gains in complexity

Wednesday, December 3, 2003

WASHINGTON — The key church-state case of Locke v. Davey seemed a lot more complicated at the end of Supreme Court oral arguments yesterday than it did before they began.

Beforehand, many analysts saw it as a simple case of religious discrimination that a majority of the justices would balk at. The Washington state law at issue excludes theology majors — and only theology majors — from eligibility for a state college-scholarship program offered to high-achieving, low-income students.

Indeed, several justices seemed troubled by the exclusion. Justice Stephen Breyer labeled it a “very crude effort” to prevent public money from being used to train future ministers and priests.

But the surprising development that emerged during the oral arguments was that some justices appeared equally concerned about the implications of striking down the Washington law, and whether in doing so the Court would force states to fund a broad range of religious activities.

“The implications of this case are breathtaking,” said Breyer during the hourlong arguments, suggesting that if the Washington law were found unconstitutional, then all government programs from schools to welfare “must fund all religions.”

Arguments in Locke v. Davey, No. 02-1315, drew a large crowd to the Supreme Court. Among those in attendance was litigant Joshua Davey, who sued the state after being told in 1999 that his plan to major in pastoral studies at Northwest College made him ineligible for a $1,125 scholarship. Davey, 23, has changed his career plan and is now a first-year student at Harvard Law School.

Reflecting their doubts about the case, justices unleashed a torrent of questions to the three advocates before them, prompting one veteran of church-state litigation to remark that “it was the most unsatisfying argument in a church-state case in years.” The aggressive questioning made it virtually impossible for any of the lawyers to make an argument cleanly.

“My notes could have been lost in the wind, and it wouldn’t have mattered,” said Davey’s lawyer, Jay Sekulow, afterward. “I had not one chance to get to a thematic point I planned to make.” Sekulow, chief counsel of the American Center for Law and Justice, fielded more than 40 questions in 20 minutes before the Court. He argued that Washington had improperly “targeted religion” for unfavorable treatment.

But Sekulow said the session still left him optimistic that the ruling by the 9th U.S. Circuit Court of Appeals striking down the Washington law would be upheld. Others in the audience were less certain, suggesting that Justice Sandra Day O’Connor, a potential swing vote in the case, might have been scared off by the seemingly broad implications of the case.

O’Connor repeatedly compared the Washington state law to school-voucher programs, wondering whether the Washington scholarships, like some voucher programs, provide the money directly to the student or to the institution. The Washington scholarship money goes directly to the student, but must be used to fund his or her college tuition. Still, O’Connor seemed worried that a ruling in Davey’s favor would make it mandatory — not optional — for states to include parochial schools in voucher programs.

The Court said in 2002 that tax dollars in the form of vouchers could go toward tuition at religious schools (in Zelman v. Simmons-Harris), but yesterday O’Connor wondered aloud whether states “must … fund all private and religious schools” as a result of the case now before the Court.

Neither Sekulow nor Solicitor General Theodore Olson, who also argued against the Washington law, calmed the justices’ fears entirely, both acknowledging that a decision in Davey could significantly affect voucher programs.

But Olson did assure the Court that it could rule narrowly, telling Breyer the case is “not as far-reaching as the sense of doom that your question suggested.”

Olson described the Washington law as “the plainest form of religious discrimination,” sending a clear message that religious study is “disfavored and discouraged.” Hinting at her ambivalence about the case, O’Connor quickly replied that government neutrality toward religious activities was “as old as the country itself.”

The case reflects the Court’s long-running debate over how to ease tension between the establishment clause and the free-exercise clause of the First Amendment. In trying to avoid establishment-clause problems by choosing not to subsidize the education of future priests and ministers, did Washington state necessarily violate the equally protected right of Davey to exercise his religion free of government restraint?

In Davey’s case, the debate is complicated by an overlay of controversial state constitutional law.

When Washington became a state in 1889, it was required to adopt a constitutional provision that strictly barred the use of any public funds for religious exercise or instruction. It was an outgrowth of the so-called Blaine Amendment movement that some say was motivated in part by 19th-century nativist and anti-Catholic sentiment nationwide.

Washington’s solicitor general, Narda Pierce, quickly tried to dispel that historical image, telling the justices that there was “no evidence in Washington of any anti-Catholic motive” in the constitutional amendment that spawned the scholarship provision excluding theology majors.

Several justices questioned Pierce about the rationale for excluding theology majors and no one else, noting that non-theology majors could take the same courses and still be eligible for state scholarships. Justice David Souter called it a “bad job of line-drawing,” though he did not go on to say that the statute was fatally flawed.

Justice Anthony Kennedy, viewed as another potential swing vote in the case, seemed particularly critical of the Washington law. He repeatedly asked what the state’s interest was in singling out theology majors. At one point he also said the law forced Davey to “surrender his conscientious belief,” which he said was a “very severe violation of religious conscience.”

Pierce said excluding theology majors was a better way to accomplish the state’s goal of not sponsoring religion than a more-entangling “class by class determination” of students’ course choices.

She also tried to appeal to the Court’s respect for states’ rights. Under numerous Court precedents, she said, states had been given “wide latitude to make their own funding choices.”

A decision in the case could come anytime before the end of the Court’s term in June.

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