WASHINGTON (BP)–A state can single out a ministerial student for disqualification from its college scholarship program, the U.S. Supreme Court ruled Feb. 25 in an opinion critics described as inconsistent with its recent decisions.
In a 7-2 opinion, the high court upheld the state of Washington’s prohibition of Joshua Davey from a scholarship program for high-achieving, low-income students because he chose to major in pastoral ministries. The justices agreed with the state’s argument that it had the authority under its constitution to refuse aid for such a student in order to protect the religious consciences of its citizens.
The Supreme Court reversed a decision by the Ninth Circuit Court of Appeals, which ruled Washington had violated Davey’s religious free exercise rights.
“I’m shocked that even a majority of this court would rule in favor of so blatant a discrimination against religious freedom,” said Richard Land, president of the Southern Baptist Ethics & Religious Liberty Commission.
Jay Sekulow, chief counsel of the American Center for Law and Justice, said he was “very disappointed with a decision that clearly sanctions religious discrimination.”
“It is troubling that the decision is irreconcilable with more than [a] half century of Supreme Court precedent regarding the free exercise of religion,” said Sekulow, who argued on Davey’s behalf in front of the justices in December.
Brian Fahling, senior trial attorney for the American Family Association’s Center for Law and Policy, said the ruling “marks a dramatic and troubling departure from the court’s recent decisions prohibiting states from using religion as a basis for denying funds otherwise available to their citizens.”
In the court’s opinion, Chief Justice William Rehnquist said Washington’s policy against aiding ministerial students in the program demonstrates “there are some state actions permitted by the establishment clause but not required by the free exercise clause.” The state would not violate the First Amendment if it chose to fund ministerial students, Rehnquist wrote.
The majority rejected Davey’s argument the program is “not facially neutral with respect to religion” under a 1993 decision in which the justices ruled against the city of Hialeah, Fla., which outlawed animal sacrifices like those practiced by the Santeria religion.
In Davey’s case, “the state’s disfavor of religion (if it can be called that) is of a far milder kind,” Rehnquist wrote. “It imposes neither criminal nor civil sanctions on any type of religious service or rite. It does not deny to ministers the right to participate in the political affairs of the community. And it does not require students to choose between their religious beliefs and receiving a government benefit. The state has merely chosen not to fund a distinct category of instruction.
“Training someone to lead a congregation is an essentially religious endeavor,” Rehnquist said. “Indeed, majoring in devotional theology is akin to a religious calling as well as an academic pursuit.”
Associate Justice Antonin Scalia, joined only by Clarence Thomas, dissented, saying Washington’s program “facially discriminates against religion.”
“When the state makes a public benefit generally available, that benefit becomes part of the baseline against which burdens on religion are measured; and when the state withholds that benefit from some individuals solely on the basis of religion, it violates the free exercise clause no less than if it had imposed a special tax,” Scalia wrote.
There is no doubt the case is “about discrimination against a religious minority,” he said. “One need not delve too far into modern popular culture to perceive a trendy disdain for deep religious conviction. In an era when the court is so quick to come to the aid of other disfavored groups … its indifference in this case, which involves a form of discrimination to which the Constitution actually speaks, is exceptional.”
As an example of the high court’s protection of “other disfavored groups,” Scalia cited a 1996 opinion supporting homosexual rights.
The ERLC’s Land especially took exception to Rehnquist’s comment that Washington’s “disfavor of religion … is of a far milder kind” than in a previous case.
“I was under the impression that the First Amendment protected American citizens against religious discrimination no matter how mild that discrimination may be considered by the justices,” Land said. “This is a shameful decision and one that should outrage all fair-minded Americans.”
The Alliance Defense Fund was “greatly disappointed” and “saddened that Joshua Davey can be treated as a second-class citizen,” said ADF President Alan Sears.
The majority’s opinion that the state would not act unconstitutionally if it permitted ministerial students in the program is a “silver lining,” Sears said. “This is contrary to the ‘separation of church and state’ mantra of the ACLU and its allies.”
Organizations advocating a strict separation of church and state applauded the ruling.
Barry Lynn, executive director of Americans United for Separation of Church and State, called the opinion “a huge defeat for those who want to force taxpayers to pay for religious schooling and other ministries. This maintains an important barrier to efforts to fund school vouchers and other faith-based programs. The ‘faith-based’ initiative suffered a severe blow with today’s high court ruling.”
Others, however, denied the opinion would have an impact on school-choice programs or President Bush’s faith-based initiative. The court “made it very clear that the training of ministers was the only issue presented” in the case, said Clark Neily, senior attorney for the Institute for Justice.
The case, Locke v. Davey, originated when 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 Kirkland, Wash. 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.
The Bush administration argued on Davey’s behalf before the high court.
Among organizations signing onto friend-of-the-court briefs supporting Davey were the Association of Southern Baptist Colleges and Schools, the Christian Legal Society, the Council for Christian Colleges and Universities, Focus on the Family, Family Research Council, the U.S. Catholic Conference and the Black Alliance for Educational Options.
The Baptist Joint Committee on Public Affairs, the National Education Association and the ACLU were among those endorsing briefs supporting Washington.
Davey, now a graduate of Northwest College, is a first-year student at Harvard Law School.