Constitutionalizing Religious Discrimination

Unfortunately, the release of The Passion of the Christ was accompanied by a dramatic episode of religious intolerance. But it had nothing to do with the movie.

The same day Mel Gibson's film opened, the Supreme Court issued a stunning decision permitting religious discrimination.

Feb. 25's court ruling came in Locke v. Davey, a case brought by Joshua Davey, a college student who was made to forfeit a $1,125 scholarship he had received from the state of Washington.

Davey had used his Promise Scholarship award to enroll at Northwest College, a Christian school affiliated with the Assemblies of God. When he declared a double major in business management and pastoral studies, the state revoked his scholarship because the statute authorizing the Promise program explicitly declared that no aid could be given to a student pursuing a degree in theology.

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Despite the court's claim to the contrary, Davey was subject to blatant religious discrimination. Washington's scholarship program does not favor a specific type of study or even encourage students to enroll in one of the state's public schools. Recipients can attend any accredited college in the state, public or private. Scholarships are awarded based on students' high-school grades and financial need, not on their proposed courses of study.

The program is one of general availability with only one exception — it excludes students who study theology, which the state interprets as the study of religion from a religious perspective.

According to Washington state's lawyers, Davey could have used his scholarship to major in religious studies at the University of Washington but not to major in pastoral studies at Northwest College. One fact alone disqualified him from his scholarship: that his major approached religion from a religious perspective.

A seven-member court majority (Justices Antonin Scalia and Clarence Thomas dissented) ruled that the program passes constitutional muster because the state possesses an “antiestablishment interest” that allows it to “disfavor” religion. In plain English, that means the government may legitimately single out religion for discrimination.

Although written by the conservative Chief Justice William Rehnquist and signed by supposed moderates Justices Sandra Day O'Connor and Anthony Kennedy, the decision abandons the idea that the state must treat religion at least as well as non-religion.

It is inconceivable that the court would allow such hostile action against any ethnic, racial or other sort of group identity, save the criminally convicted. Rehnquist's unfortunate choice of language will likely become the rallying cry of anti-religion legal activists who seek to drive religion further out of the public square.

To support his opinion, Rehnquist cited America's Founding Fathers and their efforts to end direct taxpayer support of religion. Several state constitutions at the time of the founding, he emphasized, “prohibited any tax dollars from supporting the clergy.”

But the chief justice's history is woefully inadequate — and outrageously so from a justice who purports to believe in “original intent.” In their efforts to end established churches, the founders sought to prohibit taxes that directly supported only religious ministers.

They sought to end exclusive privileges enjoyed solely by members of established churches. They never sought to deny religious citizens the right to participate equally in programs of general availability. Rehnquist's claim, “that early state constitutions saw no problems in explicitly excluding only the ministry from receiving state dollars,” is a historical mistake.

In fact, just a year before he drafted what would become the First Amendment, the “Father of the Constitution,” James Madison, sharply criticized a proposal for Virginia's Constitution that excluded religious ministers from holding state office.

Writing in 1788, Madison asked rhetorically, “Does not the exclusion of ministers of the Gospel as such [from eligibility for state office] violate a fundamental principle of liberty by punishing a religious profession with the privation of a civil right? … Does it not in fine violate impartiality by shutting the door against the ministers of religion and leaving it open for those of every other?”

Madison's questions make clear that the fundamental principle of religious liberty forbids the government from using religion as a basis for discriminatory treatment.

Washington's statute is exactly the type of law the founders sought to prohibit. The statute classifies one type of student by using a religious test and then prohibits those students from participating in a generally available program. That's religious discrimination.

A state could, consistent with the First Amendment, award scholarships only to students pursuing fields of study needed by the state. If state legislators foresaw a shortage of nurses, for example, they could establish a scholarship for nursing students only.

Similarly, a state could favor its own schools over private schools and choose to award scholarships only to students matriculating in public universities. But if a state establishes a generally available program, the First Amendment's guarantee of religious liberty prohibits the government from excluding participants on account of a classification based on religion — or at least it did until last month.

The controversy surrounding The Passion of the Christ serves to remind us that, whatever progress has been made, religious discrimination still exists in the real world. With their ruling, the seven-member Supreme Court majority has accomplished something Mel Gibson could not possibly attempt — they not only endorsed religious discrimination but they also constitutionally sanctioned it.

Vincent Phillip Muñoz is a fellow at the American Enterprise Institute and an assistant professor of political science at North Carolina State University.