WASHINGTON — He might not be a lawyer yet, but Joshua Davey is getting his legal education firsthand at the U.S. Supreme Court.

The first-year Harvard law student's fight to keep a scholarship he won in 1999 took him to the highest court in the land Dec. 2.

The court is considering whether the state of Washington was right to strip Davey of more than $2,500 in scholarship funds after the student declared a double major in pastoral ministries and business management at Northwest College in Kirkland, Wash. Davey grad-uated from the college last spring with high honors.

“This is a case of express anti-religious discrimination by the state,” said Walter Weber, senior litigation counsel for the American Center for Law and Justice, the firm representing Davey.

“Our position is that the state has no business penalizing or burdening private religious choices,” Weber said. “If they say, ‘Here is the program. You qualify. You're going to a school that qualifies. You're studying a subject we allow people to study, but if you study it from a religious viewpoint, you're disqualified,’ our position is not only is that discriminating against religion, but it's [also] discriminating against a par-ticular viewpoint.”

While studying at Northwest College in 1999, Davey received a Washington State Promise Scholarship. To qualify, students had to graduate in the top 10% of their high school class, attend an accredited school and demonstrate financial hardship.

“When he initially signed up for the program and got the scholarship, there was no hint about a restriction on theology majors,” Weber said. “And Davey said that as a matter of conscience, he wasn't going to [switch majors] just to get the money.”

But lawyers for the state contend that Washington's Constitution prohibits funding any kind of religious instruction and a statute says scholarships cannot be provided to students pursuing a theology degree. Washington Solicitor General Narda Pierce argued the case before the Supreme Court.

“Washington's Constitution provides freedom of conscience in religious matters for all its citizens by limiting government's regulation of religious activities and also limiting government's funding of religious instruction,” Pierce said. “Although under the federal establishment clause states are allowed to provide some funding for religious instruction, we contend they're not required to provide that funding.”

Americans United for Separation of Church and State filed a friend-of-the-court brief supporting the state of Washington's position. Executive director Barry Lynn says Davey did not have a free-exercise-of-religion right to the scholarship.

“We do not see it as discrimination or anti-religious bigotry on the part of the state of Washington,” he said. “We see it as an important constitutional distinction between religious studies and the study of other disciplines.”

Affect on Vouchers

The Davey case could clarify last year's landmark case of Zelman v. Simmons-Harris, where the Supreme Court upheld the use of state-funded vouchers for children attending private, parochial schools.

In their decision, the justices decided states could offer “neutral” voucher programs that present a “genuine choice among options, public and private, secular and religious.” However, a legal hurdle remains over those states that ban voucher and scholarship programs.

During the Dec. 2 oral arguments in Locke v. Davey, several justices appeared uncertain whether their 2002 decision would automatically apply to a person's freedom to choose theology for study and still be eligible for public scholarship funds.

Washington is one of 37 states with broader laws prohibiting spending tax dollars on religious training.

Lynn contends that if the high court rules in Davey's favor — saying that states must allow theology majors equal access to public scholarship programs — then states such as Washington could be forced to fund both private and public schools.

“All these state constitutions that bar aid to religious education are simply nullified,” he said. This, he said, is prohibited by the U.S. Constitution's establishment clause.

But Patrick Gillen, an attorney with the Thomas More Law Center in Ann Arbor, Mich., says that with both state vouchers and scholarship funds, the final destination for the money is determined by the personal choice of an individual citizen, not the state. The flow of money has absolutely no consequences for the establishment clause, he said.

“Where state money flows to an institution that admittedly has a religious inspiration, affiliation and mission, so long as that money reaches the institution as the result of a citizen's free choice, the program does not offend the establishment clause,” he said.

Gillen, who filed a friend-of-the-court brief supporting Davey, is the attorney for Teresa Becker, an Ave Maria College senior who was also stripped of scholarship funds for choosing a theology major.

Michigan denied Becker $2,750 in 2002. But in July, Federal District Judge George Caram Steeh issued a preliminary ruling in her favor. The decision placed the scholarship funds into an interest-bearing account until further order from the court. Then he stayed the case pending the decision in Davey.

“Both cases hinge on whether the state can penalize someone for pursuing their own chosen course of study and vocation in life,” Gillen said. “In both cases, the student is being stripped of state funding because their free choice is to pursue a major the states have decided to disfavor. There's no reason for that. It's unjust.”

The Supreme Court is expected to issue its decision in Locke v. Davey by June.

“We've known from the beginning that the Supreme Court only takes cases that are difficult,” Pierce said. “There are different perspectives, so we'll just have to wait and see.”

Patrick Novecosky writes from Ann Arbor, Michigan.