Locke, Gary, Gov. of Washington v. Davey, Joshua (02/25/2004)

Questions presented: Does the Free Exercise Clause of the 1st Amendment require a state to fund religious instruction, in the face of a state constitution that provides that no public money shall be appropriated or applied to religious instruction, if the state provides college scholarships for secular instruction?

BY: ANDREA BOYLE, MEDILL NEWS SERVICE

In the fall of 1999, Northwest College freshman Joshua Davey walked into the registrars office to declare his majors. When Davey told administrators at the private Christian school in Kirkland, Washington, of his choices, they had bad news for him. Davey wished to double major in business administration and pastoral ministries. Northwest College officials informed Davey that this decision would cause him to lose his state-funded scholarship of $1,125.

Davey was the recipient of a Washington State Promise Scholarship, a source of funding created by the state legislature just that year. In order to qualify for the scholarship, students had to graduate in the top ten percent of their high school class, attend an accredited school in the state and demonstrate financial hardship. Unfortunately for him, there was an exception. Students receiving the Promise Scholarship could not use the money to obtain a degree in theology, if the program is taught from a perspective intended to induce a faith or belief. Pastoral ministries, a major meant to prepare one for a career as a minister, counted as a study of that type of theology.

"The taxpayers will fund religious studies education if the religious education is geared to looking at the bible as anything but truth," Stuart Roth, Daveys attorney, said.

The state of Washingtons constitution, dating back to 1889, prohibits public funding for religious instruction. In 1969, Washington adopted a state code that applied this ban to college financial aid.

Thus, Davey was forced to choose between his major and retaining his scholarship. He chose to continue with pastoral ministries and pay his $9,672 tuition without state aid. In February 2000, Davey filed suit in U.S. District Court in Washington, alleging that by applying the state constitutions ban on funding religious instruction, the states Higher Education Coordinating Board violated Daveys free exercise, free expression, free association and equal protection rights under the U.S. and state constitutions.

The question raised was whether or not the state constitutions provision violates the U.S. Constitutions 1st Amendment. Does Washington states constitutional provision regarding funding religious instruction undermine the free exercise clause, contained in the Bill of Rights, which states, "Congress shall make no law prohibiting the free exercise [of religion]?"

Roth said the state constitution goes too far.

"It erects a higher barrier between separation of church and state than the [U.S.] Constitution does," he said.

In August 2000, the District Court ruled in favor of the state. The court said the design of the scholarship did not violate Daveys free exercise rights: "While a citizen may not be unduly prohibited from practicing his religion, he may not demand that the government pay for those religious pursuits."

The court also rejected Daveys other claims.

On July 18, 2002, a divided 9th Circuit Court of Appeals panel reversed, concluding that Daveys free exercise rights were violated.

The majority decision said that the states policy lacked neutrality. The Promise Scholarship is obtainable by any student who meets the criteria, except those students who wish to study theology.

"As this classification facially discriminates on the basis of religion, it must survive strict scrutiny," Judge Pamela Ann Rymer wrote. "We are not persuaded that it does."

Washingtons interest in avoiding conflict with its state constitution is not a compelling reason to withhold scholarship funds, she said. Additionally, by excluding theology students, the state communicates disfavor and discriminates in a way that suppresses a religious point of view.

In dissent, Judge M. Margaret McKeown argued that the case was neither a free exercise nor free speech case, but rather a funding case. Because Northwest College is a Christian institution, Davey would be exposed to education infused with his religion of choice. Therefore, the state was not denying Davey his freedom to practice religion.

The states motion for a rehearing was denied.

The ruling prompted Washington to notify all colleges and universities in the state that theology students will now be able to receive Promise Scholarships and all other state financial aid.

"I think for us, the basic issue is whether the state has to pay for a person to exercise their constitutional rights," said Washington Assistant Attorney General Bill Collins, in appealing to the U.S. Supreme Court for review. "In this case we are not paying for Mr. Davey to exercise his constitutional rights, but we are not keeping him from exercising them."

Collins said he believes there is a consistent line of Supreme Court decisions that back his argument. The Court has denied supplying government money for the exercise of constitutional rights such as receiving an abortion.

On May 19, 2003, the nations highest court agreed to hear the case. Oral arguments were held in December, shortly after Davey was to begin his first year as a law student at Harvard University.

On Feb. 25, 2004, the Court decided against Davey, holding 7-2 thatthe state of Washington was not violating the 1st Amendment's free exercise clause by declining to provide state scholarship money for a devotional theology degree.

Writing for the majority in a relatively terse opinion, Chief Justice William Rehnquist concluded that the scholarship program was not disfavoring religion, but merely choosing not to fund a distinct category of instruction.

In so holding, Rehnquist recalled many instances since the nation's founding in which popular uprisings were fomented because citizens were asked to fund activities of one church or another. In that light, the Court reasoned, it was not unreasonable for states and state constitutions to expressly prohibit the use of tax money to support ministries, as a way to avoid the 1st Amendment prohibition against establishing religions.

The Court called the tension between the 1st Amendment's establishment and free exercise clauses the "play in the joints" between the two clauses. "If any room exists between the two Religion Clauses, it must be here," wrote Rehnquist in upholding Washington's program.

Justices Antonin Scalia and Clarence Thomas dissented.

"Even if 'play in the joints' were a valid legal principle," wrote Scalia, "surely it would apply only when it was a close call whether complying with one of the Religion Clauses would violate the other. But that is not the case here."

Conceding that it may have been benign of Washington originally to exclude clergy from public benefits and it may still be today, Scalia ventured that "those singled out for disfavor can be forgiven for suspecting more invidious forces at work. Let there be no doubt: This case is about discrimination against a religious minority."

In conclusion, Scalia warned of the slippery slope beyond religion.

"What next? 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," wrote Scalia.

In his two-paragraph dissent, Justice Thomas noted that the parties seem to have agreed that a “degree in theology” means a degree that is “devotional in nature or designed to induce religious faith,” yet to him, that need not be the case. In my view, he wrote, "the study of theology does not necessarily implicate religious devotion or faith."