Supreme Court hears Washington State scholarship case

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Supreme Court split in church-state case
Washington scholarship was denied on religious grounds

SEATTLE POST-INTELLIGENCER NEWS SERVICES
WASHINGTON -- All Joshua Davey, a valedictorian at his Spokane high school,
wanted was to study in college to become a minister.

Instead, that simple plan four years ago turned into a church-state case
embraced by religious conservatives as a vehicle for expanding their recent
Supreme Court victories.
But when the Davey case was argued at the Supreme Court yesterday, it met
resistance from a deeply divided court. One called the possible consequences
of the case "breathtaking."

Davey lost a state-sponsored Promise Scholarship, which goes annually to
more than 6,000 bright students who come from families of modest means. The
problem was that he intended to major in pastoral studies at Northwest
College, a Kirkland school affiliated with the Assembly of God denomination.

Had he decided to study biology, English or anything else, the scholarship
would have been his. But Washington state law prohibits state aid for
theology majors. The state said the law simply follows the Washington
Constitution, which prohibits appropriation of money for "religious worship,
exercise or instruction."

During an hourlong court argument here yesterday, several justices seemed
receptive to Washington state's defense of its ban on aid for religious
study, saying the prohibition is in keeping with the constitution's
separation of church and state.
But other justices, principally Antonin Scalia, sided with Davey and lawyers
for the Bush administration, who argued that the prohibition violates the
equally strong constitutional command that government not interfere with
people's ability to freely practice their religion.

"The implications of this case are breathtaking," Justice Stephen Breyer
said at one point to Solicitor General Theodore Olson, who called the
Washington program "the plainest form of religious discrimination."

Davey has since abandoned his ambition for the ministry in favor of Harvard
Law School but said he is still bothered that the state seemed to slight his
first choice.

"From my perspective it was very unfair and kind of arbitrary," said Davey,
a devout Christian. "I was being told that that value wasn't important and
wasn't worth the state's money."

Davey sued in federal court three years ago. The San Francisco-based 9th
U.S. Circuit Court of Appeals sided with Davey last year, finding that the
state had no compelling interest in limiting what he could study.

Yesterday's arguments set the stage for a decision next year on allowing
public tuition assistance for parochial elementary and secondary students
through voucher programs.
And although the issue was not mentioned directly in yesterday's arguments,
the administration's plans to allow more church-based organizations to
compete for government money would benefit immeasurably from a decision to
uphold the lower-court ruling. Not only would it be permissible to channel
federal money through religion-based service organizations, but some version
of the administration's program might be seen as constitutionally mandatory.

"If your side wins," Breyer told the solicitor general, "every program, not
just educational programs, but nursing programs, hospital programs, social
welfare programs, contracting programs throughout the governments" would all
be subject to the argument "that they cannot be purely secular, that they
must fund all religions who want to do the same thing."

Different religious groups "may get into fights with each other about
billions and billions of dollars," Breyer continued.

Describing the Washington program, Olson said that "the clear and
unmistakable message is that religion and preparation for a career in the
ministry is disfavored and discouraged."

He added that "the person who wants to believe in God or wants to have a
position of religious leadership is the one that's singled out for
discriminatory treatment."

His argument met an unexpectedly skeptical response from Justice Sandra Day
O'Connor, who said: "Well, but of course, there's been a couple of centuries
of practice in this country of not funding religious instruction by tax
money." She added, "I mean, that's as old as the country itself, isn't it?"

"Well, yes it is," Olson replied. "But there is the other tradition that is
as old as the country itself, the free exercise component of the religion
clauses, which this court has said repeatedly mandates neutrality."

At times, O'Connor appeared to doubt that the state's denial of a
scholarship for religious study amounted to an unconstitutional burden in
the first place.

"How does this violate the student's right to free exercise of religion?"
she asked Jay Sekulow, Davey's lawyer. "Maybe it's more expensive to go to
school, but why does that violate his free exercise of religion?"

Throughout the proceeding, both O'Connor and Justice Anthony Kennedy worried
aloud that a decision striking down the Washington program would have the
effect of compelling any state that offered tuition vouchers as part of a
"school choice" program to include religious schools, regardless of whether
the state wanted to create such an inclusive program.

"Can they refrain from making that program available for use in religious
schools?" O'Connor asked Sekulow.

"I would think not," replied Sekulow, chief counsel of the American Center
for Law and Justice, a legal organization founded by the Rev. Pat Robertson.
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