WASHINGTON (BP)–The U.S. Supreme Court heard arguments Dec. 2 on whether a state violated a ministerial student’s First Amendment right to exercise his faith by barring him from receiving a scholarship for which he otherwise was qualified.
The state of Washington contended before the justices that it has the authority under its constitution to protect the religious consciences of its citizens by refusing aid to a high school graduate who chose to major in theology at a Christian college. Parties for Joshua Davey, including the federal government, countered that the state’s ban on a scholarship recipient studying theology from a religious perspective clearly violates the free-exercise clause of the U.S. Constitution.
The opinion, expected to be issued by next summer, could have “breathtaking” implications, Associate Justice Stephen Breyer said during the hour-long arguments. Observers have said the high court’s ruling in Locke v. Davey could affect school voucher proposals as well as efforts to make funds available to faith-based organizations that provide social services.
The justices ruled last year in an Ohio case that a state program permitting vouchers to be used at religious schools does not violate the First Amendment’s prohibition on government establishment of religion. In Locke v. Davey, the court is pondering whether the free-exercise clause requires states to provide funds to religious schools or studies when they are made available to other private schools.
Washington’s policy “discriminates on its face,” Jay Sekulow, representing Davey, told the justices. It “target[s] religion,” said Sekulow, chief counsel of the American Center for Law and Justice. “[T]he state should be neutral.”
U.S. Solicitor General Theodore Olson said it violates the components of “neutrality and equality” in the First Amendment. “The court has said before [you] cannot have a religious test for a government benefit,” Olson told the justices. “This is a religious test.”
Narda Pierce, the state’s solicitor general, however, argued that Washington has not “overstepped” the broad latitude afforded states by the high court. She added that “not providing funds does not infringe a fundamental right.”
The state appealed to the high court after a three-judge panel of the Ninth Circuit Court of Appeals ruled in Davey’s favor that Washington had violated his religious free-exercise rights.
Davey initially received a scholarship under a 1999 program established by the state. To qualify, a student had to finish in the top 10 percent of his public or private high school graduating class, have an established financial need and enter an accredited public or private college in the state. After Davey declared a double major in pastoral ministries and business administration as a freshman at Northwest College in Kirkland, the state informed the four-year Christian school it could not release the scholarship funds to theology majors.
Various justices questioned the state’s decision to focus on the declaration of a major. Davey could have kept his scholarship despite taking basically the same courses by declaring only a business major, Associate Justice Anthony Kennedy said.
“That may show the state draws a funny line,” Associate Justice David Souter said. Breyer called it “crude,” like “many administrative lines.”
The state focuses on “degree programs that are inherently religious,” Washington’s Pierce noted. The state avoids “entanglement” by not making class-by-class judgments, she told the justices.
Pierce denied the article in the state’s 1889 constitution barring funding of religion is a “Blaine amendment.” Washington is one of 37 states that have similar provisions prohibiting such funding. They have gained the label from Rep. James Blaine, whose efforts in the 1800s to ban funds for public schools from religious use failed at the federal level but succeeded in many states. His efforts came at a time when Catholic immigrants especially were entering the United States. There is no evidence in Washington of any “anti-Catholic motive,” Pierce told the justices.
Davey’s supporters, however, said the court should end the religious discrimination by states that began in the 19th century.
“I’m encouraged by the justices’ concerns about the arbitrariness and irrationality of the government’s program and the way that it excludes people, and I think a number of the justices have recognized the unfairness and the discrimination that’s going on” in Washington state, the Christian Legal Society’s Greg Baylor told Baptist Press after the arguments.
“The question is: ‘[When] the government sets up a voucher program that includes private schools but excludes religious schools simply because they’re religious, does that violate the Constitution? [The justices] are worried about pre-committing themselves to an answer to that question,” Baylor said. “In my view, they shouldn’t be concerned about that, because that kind of exclusion has no justification. There’s no compelling reason for it. It’s unfair, and it’s discriminatory. They shouldn’t be afraid of striking down this form of discrimination against religious schools despite the legacy that it has in this country.”
The Association of Southern Baptist Colleges and Schools signed onto a friend-of-the-court brief written by Baylor and endorsed by the Council for Christian Colleges and Universities, Focus on the Family and Family Research Council.
“For years, state and federal funds designated for financial aid were based solely on need,” ASBCS Executive Director Bob Agee said in a written statement. “The state of Washington’s decision to deny the student the right to funds that were provided to other citizens of the state with the same qualifications of need means that the state chose to discriminate against the student based on his religion and penalized the student for his choice of major. We believe that this action is improper.
“We believe that if the Supreme Court rules in favor of the state of Washington, it sets a precedent that will have a far-reaching, negative effect on students who are pursuing majors in religion or are pursuing careers in ministry,” Agee said. “Thousands of students across the U.S. will be adversely affected if the court rules against the student in this case and sets a precedent which other states will choose to follow. Neither the state nor the federal government has any business telling a student what they can or can’t major in.”
Barry Lynn, executive director of Americans United for Separation of Church and State, denied the case is about discrimination against people of faith.
“It is about a very reasonable distinction drawn by the state of Washington that says the conscience of all citizens will be protected because no one will be forced to pay for the religious education of some,” Lynn told reporters after the hearing. “The state of Washington does not pay ministers to give sermons. It does not pay priests to give communion. And it makes no sense to require the state to fund the training of people in those vocations either.”
Baylor rejected Lynn’s argument that the case is about the “taxpayers’ conscience.” The state funds University of Washington students who take classes on the same topics from “a perspective that suggests that there is no such thing as religious truth,” Baylor said. “That’s what taxpayers are being forced to fund in Washington. We say fund it all, fund all perspectives. That’s the American way. Students should have a right to choose, and Washington wants to deny Joshua Davey the right to choose.”
Lynn said the court’s decision in the case “potentially determines very much the future of the separation of church and state principle in our country.”
In addition to AU, among those signing onto briefs supporting Washington were the Baptist Joint Committee on Public Affairs, the American Civil Liberties Union and the National Education Association.
Joining in briefs supporting Davey were the Becket Fund for Religious Liberty, the Black Alliance for Educational Options, the U.S. Catholic Conference and the Institute for Justice, which is helping defend voucher programs in Florida and Colorado.
Davey graduated from Northwest College and is a first-year student at Harvard Law School. Of the change in his vocational plans, he told reporters he believes being a Christian lawyer is “very much a ministry as well.”