Supreme court weighs public funds for religion
By: MARILYN H. KARFELD Staff Reporter
A case before the U.S. Supreme Court this term has wide implications for government funding for faith-based groups, whether for social welfare programs or school vouchers.
During oral arguments earlier this month, a majority of the justices expressed concern that the case potentially calls into question all prohibitions on state funding of religion.
In Locke v. Davey, student Joshua Davey sued the state of Washington because it denied him a scholarship to major in pastoral studies at a private Christian college. A federal appeals court agreed with him that Washington violated his constitutional right to free exercise of religion. Washington state appealed the decision to the Supreme Court.
Washington state's Promise Scholarship Program gives awards to needy students in the top 10% of their high-school class who attend accredited colleges in the state, including private religious ones. But the program excludes students who pursue a degree, like pastoral studies, which focuses on inducing faith or belief.
Davey's lawyer argued that the government has to treat religion exactly the same as it treats any other private activity, says Jonathan Entin, professor of law and political science at Case Western Reserve University. This so-called strict neutrality toward religion is a position that conservative Justices Antonin Scalia and Clarence Thomas and Chief Justice William Rehnquist have long championed.
If Davey wins his case, "every program, not just education programs, but nursing programs, hospital programs, social welfare programs, contracting programs through the government" could arguably no longer be purely secular, said Justice Stephen G. Breyer during the oral arguments. Rather, government must "fund all religions who want to do the same thing."
Justice Ruth Bader Ginsburg pointed out that the debate in Locke v. Davey falls between "what a state is permitted to fund under the Establishment Clause and what it must fund under the Free Exercise Clause." The First Amendment to the Constitution bars the government from "establishing" or promoting a specific religion, the so-called Establishment Clause, or "prohibiting the free exercise thereof," the Free Exercise Clause.
Washington is one of 37 states, including Ohio, whose constitution prohibits direct public funding of religious instruction. These provisions are called Blaine Amendments, after a failed 1875 proposal to amend the federal Constitution.
The key issue the Davey case raises is whether a state can continue to decide that it's not going to subsidize sectarian religious instruction, says Entin. If the court sides with Davey, the states' Blaine Amendments will be unconstitutional.
Although Ohio has a Blaine Amendment, the Ohio Supreme Court ruled that the state constitution did not bar the Cleveland voucher program, which provides state-funded tuition subsidies to poor kids for use at private, including religious, schools. Similarly, Wisconsin has a Blaine Amendment as well as a voucher program that was expanded, with court approval, to include religious schools.
In 2002, the U.S. Supreme Court upheld the Cleveland voucher program, saying the tuition subsidies were constitutional because they went to students who chose where to spend the money.
Several justices, including Sandra Day O'Connor, were clearly troubled by the breadth of the argument Davey's lawyer made. Maybe it's more expensive for him to go to school, but how does denying Davey a scholarship "violate the student's right to free exercise of religion"? she asked.
Justice Anthony Kennedy noted that a ruling for Davey would mandate that states must include religious schools in any elementary-school voucher program they establish. He also noted that the way the Washington program is written, a student could take the same courses Davey pursued and still receive a state scholarship if he waited a year and declared his major as something else.
Jewish groups, which disagree on the principle of separation of church and state, similarly are divided on the Davey case. The American Jewish Committee, the American Jewish Congress and the Anti-Defamation League filed briefs against Davey's position. They said he was not barred from pursuing a religious education, only from receiving a state benefit.
In contrast, Orthodox organizations, including the Orthodox Union and Agudath Israel of America, argued in a brief that the Washington scholarship program discriminates against those studying religion.
Based on the questions the justices asked during oral arguments, Entin suspects that there are at least five votes against Davey's position. Rather than deciding the case broadly, and overturning all the Blaine Amendments, the court may narrowly say the way the one in Washington state works is irrational and cannot stand, Entin adds.
If that happens, the decision will have little impact on public funding for religion.
In recent years, religious conservatives have cheered church-state court decisions that have eased the limits on taxpayer financing of faith-based groups. For example, the Supreme Court has ruled that colleges and universities cannot discriminate against religious student organizations in the use of student activity fees.
But Davey's argument goes way beyond that, Entin notes.
Locke v. Davey is one of the most important church-state cases to come up in the past decade or more, says Melvyn R. Durchslag, professor of constitutional law at Case.
"It takes the school voucher case and goes one step further," he says. "In the voucher case, the court said it is perfectly permissible for the state to provide assistance to students to be used for parochial education, if that was the student's desire."
If there's a ruling in favor of Davey, this case would essentially require the state to provide assistance to students who desire to pursue a religious education, he says. "Courts have never taken that step before."
Durchslag doesn't think that's likely to happen. But if the court upholds Davey's argument that the Washington scholarship program is discriminatory, the decision would smooth the way for the president's faith-based initiative, he says.
Both Entin and Durchslag predict a very close decision, no matter how the court rules. The court is quite conscious that striking down the Blaine Amendments "places the Establishment Clause pretty close to the back burner," Durchslag says.
Not that he thinks religious conservatives will succeed in eliminating the Establishment Clause entirely. For instance, he doesn't think any decision in the Davey case will affect the issue of prayer in public schools.
But a decision endorsing the strict neutrality toward religion that Davey advocates would definitely open the door for government funding for social welfare programs run by religious groups, Durchslag says. "It comes close to obliterating the Establishment Clause as we've come to understand it in the past 50 years."
-with JTA reports