Case of state’s grant for religious education goes to Supreme Court_60203

Posted: 5/30/03

Case of state's grant for religious
education goes to Supreme Court

By Robert Marus

ABP Washington Bureau

WASHINGTON (ABP)–The Supreme Court has agreed to hear a case that may decide whether the government is required to fund religious organizations in some circumstances.

The high court agreed May 19 to hear arguments in Locke vs. Davey, a case that originated in Washington state but could have nationwide consequences for church-state relations.

In the case, Joshua Davey applied under a state program that provides scholarships to disadvantaged Washington students who want to attend in-state colleges. The scholarships may be spent at any accredited school, including religious ones.

Davey, who qualified under the program's rules, elected to spend his scholarship at Northwest College, a Seattle-area Bible school affiliated with the Assemblies of God. However, the state revoked the scholarship when officials found out Davey planned to major in theology and business management.

State officials cited a provision in Washington's constitution that prohibits the state from spending any money on religious instruction. Davey sued the state with the help of the American Center for Law and Justice, a legal-advocacy group founded by Pat Robertson that often opposes a strict interpretation of church-state separation.

Davey won in the 9th U.S. Circuit Court of Appeals, generally considered one of the nation's most liberal federal appeals courts. A three-judge panel of that court ruled 2-1 that the Washington constitutional provision, as well as a similar state statute, violated Davey's freedom of religious expression under the U.S. Constitution. Washington Gov. Gary Locke appealed the ruling to the Supreme Court.

Washington's provision is similar to clauses in several other state constitutions, sometimes collectively referred to as “Blaine amendments” by supporters of public money for religious education.

These amendments were modeled after a 19th-century amendment proposed to the U.S. Constitution by former Maine Sen. James Blaine. While critics of the Blaine amendments say the provisions had their origins in anti-Catholic bias rampant at the time, opponents of government funding for religious instruction say that argument is an oversimplification and that bad motivations don't necessarily make for bad laws.

The state Blaine amendments are seen by both sides as the last major legal obstacle to government funding for religious schools.

“Blaine amendments are the Jim Crow laws of our time,” said Becket Fund President Kevin Hasson in a press release. The Becket Fund is an organization that supports government funding for private religious schools and runs a special website dedicated to opposing Blaine-type amendments. “This case presents an opportunity for the Supreme Court to follow through … and complete the task of banning anti-religious discrimination in education in all its forms.”

But supporters of strict church-state separation decried the attempt.

“People who want to enter the ministry should pay their own way, not hand the bill to the taxpayer,” said Barry Lynn, executive director of Americans United for Separation of Church and State. “For more than 200 years, religion in America has been funded with voluntary contributions. Many states want to keep it that way and should have the right to shield people from paying the equivalent of a church tax.”

The Baptist Joint Committee on Public Affairs, a Washington religious-liberty watchdog group, has opposed school vouchers in the past. BJC General Counsel Holly Hollman said the group has not yet decided to take Washington state's side in the Locke case, but that the suit has the potential to push the school-voucher debate to a significant new level.

“What this case really does is present the issue of whether the free-exercise clause actually requires funding” of religious groups, Hollman said. “So, historically, the establishment clause has prohibited funding, and then in the Zelman case, five members of the Supreme Court were willing to say that the federal constitution at least allows some funding schemes.”

But, Hollman added, “you have to say whether or not it is a substantial burden on an individual's free exercise of religion to have the government refuse to pay for his religious education.”

Hollman said a ruling against Washington in the case could potentially nullify Blaine-type amendments in state constitutions–perhaps in as many as 37 states.

Justices will not get to hear the case in the court's current session, which is scheduled to end in June. Oral arguments in the case will be held next fall, with a decision likely to follow in the late spring or early summer.

The state of Washington revoked a scholarship when officials found out Joshua Davey planned to major in theology and business management.