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Ninth Circuit surprises, upholds religious rights

WASHINGTON (BP)–A victory for religious rights recently came from a surprising source, the U.S. Ninth Circuit Court of Appeals.

A three-judge panel of the court ruled the state of Washington was guilty of religious discrimination when it withheld a scholarship to a college student because he was pursuing a theology degree. The judges voted 2-1 to overturn a federal court ruling.

The ruling followed by less than a month another Ninth Circuit panel’s decision that the Pledge of Allegiance to the flag violated the U.S. Constitution’s ban on government establishment of religion because it includes the phrase “under God.” That 2-1 ruling produced a national outcry. The panel halted enforcement of the decision in the wake of the protests.

A three-judge panel of the same appeals court also elicited criticism from the religious community and Congress when it announced in March it was reviewing the constitutionality of a longstanding housing tax exemption for ordained ministers and other clergy. Before the end of May, Congress had passed without opposition and President Bush had signed into law legislation designed to preserve the allowance.

In the latest church-state case, however, a Ninth Circuit panel found government had violated the rights of a Christian college student who had chosen to use a state scholarship for religious studies.

Joshua Davey received a Promise Scholarship in 1999 under a Washington law passed the same year that established a program for low- and middle-income students who excel academically. Davey chose to use the $1,125 scholarship at Northwest College, an accredited Assembly of God school in the state. He chose a double major in pastoral ministries and business.

In October of that year, the Washington Higher Education Coordinating Board informed colleges in the state that students who seek a theology degree are not eligible for the scholarship. Northwest College decided a pastoral ministries major constituted a theology degree. Davey continued to major in pastoral ministries, thereby making his scholarship void, and sued the governor and the education board.

Both the state law, which bars scholarships to students pursuing theology degrees, and the HECB’s policy enforcing it resulted in a “free exercise [of religion] problem,” wrote judge Pamela Rymer in the panel’s 2-1 decision announced July 18. The law “is viewpoint based, and because its viewpoint is based on religion, it does discriminate against religious ideas,” she said.

The state’s interest in upholding the Washington constitution’s ban on establishment of religion is “less than compelling” in contrast with the student’s interest in a grant based on “objective criteria” set by the state, Rymer wrote. The Promise Scholarship is a neutral, secular program, she said.

“It is awarded to students; no state money goes directly to any sectarian school,” Rymer wrote, adding the student is the one who determines how and where to use the aid.

“The proceeds … may be used for any education-related expense, including food and housing; application to religious instruction is remote at best,” Rymer said. “HECB does not argue otherwise. In these circumstances it is difficult to see how any reasonably objective observer could believe that the state was applying state funds to religious instruction or to support any religious establishment by allowing an otherwise qualified recipient to keep his scholarship.”

Religious-liberty defenders applauded the decision.

“This is a resounding victory for equal treatment of people of faith,” said Jay Sekulow, chief counsel of the American Center for Law and Justice. The ACLJ represented Davey in the case. “This decision sends a strong message that religious exclusions will not be tolerated under the Constitution.”

The state could ask the entire Ninth Circuit Court to rehear the case.

Davey’s scholarship increased to more than $1,500 in the second year.

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