Davey Case Could Have Wider Effects Than Previously Thought

WASHINGTON — The Locke v. Davey case before the U.S. Supreme Court might be about one young man, but the possible consequences of its ruling are no less than “breathtaking,” according to Justice Stephen Breyer.

At the case's heart are a myriad of questions of legality and constitutionality: Should states have any role in funding religious education or training? Should states offering college scholarships exclude from consideration students training for a career in ministry? How can the two provisions of the establishment clause — forbidding state establishment of religion but guaranteeing its free exercise — be reconciled?

The ultimate verdict this spring will likely stir up even more questions. Groups on both sides predict far-reaching effects on issues ranging from the constitutionality of school vouchers to the role of religion in government contracting.

Davey was a high school senior when he was awarded the Washington State Promise Scholarship for use at any public or private college in the state and available to students based on academic merit and financial necessity.

But when Davey declared a double major in pastoral ministries and business management at the Assembly of God-affiliated Northwest College in Kirkland, Wash., the state revoked the scholarship on the grounds that it violated the state constitution.

The issue facing the court is whether a state violates the First and Fourteenth Amendments when it awards and then revokes a state-sponsored scholarship from a student who chooses to study a subject from a religious perspective.

“The question is not, ‘May a state fund a theology student,’” said Phillip Muñoz, a Civitas Fellow at the American Enterprise Institute. “It can, consistent with the establishment clause. The question is, ‘May a state single out theology majors and not fund them, even if it funds everyone else?‘“

Numerous states do exactly that with provisions in their state constitutions that forbid the use of taxpayer money on religious training or instruction. Named for the 19th-century Republican James Blaine and with roots in anti-Catholicism, the “Blaine amendments” are found in 37 state constitutions, including Washington's.

Several states have successfully used Blaine amendments to block school-voucher programs.

Louisiana is a different story. In that state, which has no Blaine amendment in its constitution, all students are eligible to apply for the Tuition Opportunity Program for Students — even Catholic seminarians pursuing their undergraduate philosophy majors.

“Louisiana does not specifically authorize or support theological or religious study,” said George El-dredge, general counsel for the Louisiana Office of Student Financial Assistance.

However, he notes that the Legislature has passed at least two scholarship programs that specifically excluded students who engaged in theological or religious study, although those programs are Joshua Davey. not active.

Providing that students meet the Fitzgerald/PDI photo) academic criteria established by law, they are eligible to attend Catholic schools such as Our Lady of the Lake College, Our Lady of Holy Cross College and Xavier University.

A ruling against Davey would mean Louisiana's program would have to change.

It would also spell change for North Carolina's scholarship program, which allows limited use of taxpayer money in funding religious education. While there's no provision in the state constitution that forbids spending public money on private religious education, it doesn't mean the state will pay to train students for a religious career.

“There is a prohibition against the intent of the program but not the student,” explained Steven Brooks, executive director of the North Carolina State Education Assistance Authority.

For example, he said, if a college offered a program designed to train students in pastoral ministry or even church organ music, public funds would not be I used. But there is I nothing to pro-I hibit students I from using public funds to study I theology or religion — at a public or private university — with Joshua Davey. the intent of (Christopher usmg meir skills to serve a religious institution.

The Bush administration is among Davey's supporters. U.S. Solicitor General Theodore Olsen called the state's actions “the plainest form of religious discrimination.”

Walter Weber, senior litigation counsel at the American Center for Law and Justice, the firm representing Davey, foresees a favorable outcome but cautions that the interpretation and implementation will depend on whether the ruling is broad or narrow.

“It's odds-on favor that if Davey wins it will be a narrow ruling,” he said. A narrow ruling would likely only affect state funding of religious colleges or students preparing for a career in ministry.

A ruling against Davey, Weber said, would be an invitation for some to “target and punish” private religious practices. Among the victims could well be school vouchers.

A broad ruling would be more comprehensive. Justice Breyer noted that with such a ruling the government would have to take care not to exclude religious programs in areas such as government contracting and medical programs.

It is comments such as these that make others less certain of an outcome in Davey's favor. Robert Boston of Americans United for Separation of Church and State said the justices’ questions and comments made him change his mind about the court's leanings.

Because the court has upheld aid to religious organizations in the past, he said he initially expected this ruling to continue in that direction.

Now he's not so sure. “It would be a drastic step,” he said. “There would be strong applications for any social services under faith-based initiatives.”

There are plenty of unknowns. Whether a ruling against Davey would apply to students using state funds to take theology or even comparative religion courses but not major in a religious area isn't clear, although Muñoz of the American Enterprise Institute said a ruling wouldn't extend that far. The final decision, though, will be up to the court.

The one thing both sides agree on is that the determining vote will once again come down to perennial swing-voter Justice Sandra Day O'Connor.

Dana Lorelle writes from Raleigh, North Carolina.