Bush Revs Up Marriage Amendment Debate

WASHINGTON — The U.S. Supreme Court on Feb. 25 overturned an appeals-court ruling that said Washington state discriminated against a college student when it denied him a scholarship because his major was in religious studies.

Writing for the majority in a 7-2 ruling in Locke v. Davey, Chief Justice William Rehnquist said, “Training someone to lead a congregation is an essentially religious endeavor.”

“Indeed,” Rehnquist wrote, “majoring in devotional theology is akin to a religious calling as well as an academic pursuit.”

Joshua Davey, a student at Northwest College in Kirkland, Wash., was awarded a state Promise Scholarship based on academic success and financial need. The scholarship was revoked when he chose to declare a double major in pastoral ministry and business management.

Rehnquist addressed concerns that Washington's decision was based on discriminatory, anti-Catholic Blaine amendments, which can be found in 36 states, passed in the late-19th and early-20th centuries to deny taxpayer funding of religious education.

“We find nothing in either the history or text of … the Washington Constitution, nor in the operation of the Promise Scholarship program, anything that suggests animus toward religion,” he said. “Given the historic and substantial state interest at issue, we therefore cannot conclude that the denial of funding for vocational religious instruction alone is inherently constitutionally suspect.”

There was no celebrating from school-choice advocates and religious-school sponsors.

“We are very disappointed with a decision that clearly sanctions religious discrimination,” said Jay Sekulow, chief counsel of the American Center for Law and Justice, which represented Davey.

“It is troubling that the decision is irreconcilable with more than a half-century of Supreme Court precedent regarding the free exercise of religion,” Sekulow continued. “In this case, Josh Davey simply wanted to be treated equally on the same terms and conditions as other scholarship recipients. The decision does not prohibit states from structuring scholarship programs to permit the pursuit of a degree in devotional theology. The Supreme Court, however, missed an important opportunity to protect the constitutional rights of all students.”

Rev. Barry Lynn of Americans United for Separation of Church and State celebrated the decision.

“This is a huge defeat for those who want to force taxpayers to pay for religious schooling and other ministries,” he said. “This maintains an important barrier to efforts to fund school vouchers and other faith-based programs. Americans clearly have a right to practice their religion, but they can't demand that the government pay for it.”

Richard Garnett, a professor at the University of Notre Dame's law school, said of the decision: “I believe the court has (a) uncritically embraced a sectarian version of ‘separationism’ and (b) has authorized discrimination by state actors against those who take their religious faith seriously.”


In his dissenting opinion, Justice Antonin Scalia wrote: “Let there be no doubt: This case is about discrimination against a religious minority.”

“The indignity of being singled out for special burdens on the basis of one's religious calling is so profound that the concrete harm produced can never be dismissed as insubstantial,” he said.

“What next?” continued Scalia, who was joined in dissent by Justice Clarence Thomas. “Will we deny priests and nuns their prescription-drug benefits on the ground that taxpayers' freedom of conscience forbids medicating the clergy at public expense? This may seem fanciful, but recall that France has proposed banning religious attire from schools, invoking interests in secularism no less benign than those the court embraces today. … When the public's freedom of conscience is invoked to justify denial of equal treatment, benevolent motives shade into indifference and ultimately into repression. Having accepted the justification in this case, the court is less well equipped to fend it off in the future.”

The U.S. Catholic bishops had signed onto an amicus brief in the case, where it was argued, “For the state of Washington to deny a Promise Scholarship to the respondent, who met all the neutral criteria to receive such an award, solely because he declared a major in pastoral ministries clearly presents just such a case of governmental discrimination.”

“The court's decision unfortunately failed to recognize the overt anti-Catholicism that was at the root of measures like Washington's mini-Blaine amendment, and it will undoubtedly steer some people away from religious studies in order to retain scholarships that are available to everyone else,” said John Eastman, associate professor and director at the Center for Constitutional Jurisprudence at the Chapman University School of Law. “But by weaning themselves from the public fisc, one hopes the religious schools will find themselves in a better position to chart their own course in an increasingly hostile cultural world.”

Voucher Question

“When are Christians and conservatives going to wake up to the fact that all vouchers are a form of socializing the fund-raising of tuition?” asked Marshall Fritz, president of HonestEd.com, a project of the Alliance for Separation of School & State. “Why do so many want to render to Caesar something that does not belong to him, that is, financing education?”

Despite the Locke ruling, a 2002 decision upholding Cleveland's voucher program was unaffected. Though the case was considered by some to be a test case for school-choice measures, Clint Bolick of the Institute for Justice is not too worried.

Davey was disappointing, but fortunately the decision was so narrow that choice advocates will live to see another day, when we will squarely place the issue of exclusion of religious schools before the court,“ he said. ”Until then, we will have to fight those legal questions state by state.”

Kathryn Jean Lopez is editor of National Review Online.