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Law

Justices debate public money for religious schooling

From Bill Mears
CNN

Joshua Davey talks to reporters outside the U. S. Supreme Court in Washington, D.C., on Tuesday.
Joshua Davey talks to reporters outside the U. S. Supreme Court in Washington, D.C., on Tuesday.

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LOCKE V. DAVEY
A ruling in favor of Joshua Davey could affect laws in as many as 36 other states.
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Supreme Court
Washington
Education
Religion and Belief

WASHINGTON (CNN) -- Supreme Court justices appeared equally divided Tuesday over the constraints governing public funding for religious studies in a case that one justice said could potentially reshape government spending on a vast scale.

Depending on how the court rules in the case of a college student denied scholarship money to attend divinity school, government agencies across the country would have to be careful not to exclude religious programs in many areas, such as government contracting and medical programs, said Justice Stephen Breyer.

"The implications of this case are breathtaking," Breyer said, noting governments would have to walk a fine legal line to avoid discriminating against religious programs when it came to funding for government contracting, medical training and education programs. "We would be fighting over billions and billions of dollars."

A decision on the case could not only have a legal impact on church-state grounds, but also in the realm of federalism -- the power states have over the national government to enforce its own laws. The justices are being asked to decide how far beyond the U.S. Constitution the states may go in maintaining their own policies on church-state separation.

Based on questions asked by the court during Tuesday's arguments, the deciding vote may be a familiar swing vote on the court: Justice Sandra Day O'Connor.

A ruling on the case is expected by June of next year.

White House supports student

The case, Locke v. Davey, focuses on Joshua Davey, who lost a Washington state merit scholarship when he declared theology as his major. Davey says he wanted to use his theology major as preparation for a possible career in the ministry.

Davey's decision put him in conflict with a Washington state law banning public money for theology studies, and the money was taken away. The scholarships remained available to students studying other fields.

Davey's supporters say this is a case of an unfair double standard. His attorney Jay Sekulow argued that carving out a "religious exclusion" was a clear violation of the Constitution.

The Bush administration supports Davey. U.S. Solicitor General Theodore Olson told the justices the state's position was "the plainest form of religious discrimination."

Five states also support Davey, as well as a number of religious groups.

Washington Solicitor General Narda Pierce indicated the Davey case was about funding, and questioned whether states should have to pay for a person to exercise their constitutional rights. Washington state's position is supported by a number of education and civil liberties groups.

Justices focus on First Amendment

Pierce: State law does not infringe on a person's right to seek a theology degree.
Pierce: State law does not infringe on a person's right to seek a theology degree.

In Tuesday's arguments, the justices appeared split over a tricky constitutional question: the First Amendment forbids state "establishment" of religion, while in the same sentence allows its "free exercise." Which part of the Constitution holds legal sway in the Davey case?

Four of the justices appeared to side with Washington state in denying Davey's scholarship, while four others indicated religious study should not be excluded from the scholarship program.

Justice O'Connor sharply questioned lawyers from both sides of the case.

Justice Antonin Scalia said the state was "treating religion different from non-religion. Why isn't that different," from other forms of discrimination, he asked, "If you had a [college] course debunking all religion, would that be funded? I don't see how."

Washington state's Pierce defended the ban. "We declined to fund religious instruction using public moneys in order to protect public citizens' freedom of conscience."

Narda also noted, "Washington's decision not to subsidize religious instruction to implement its state constitutional policy of separation of church and state does not infringe on [Davey's] right to seek a theology degree."

Justice Anthony Kennedy sharply questioned Narda on just how "neutral" Washington's funding ban was, and whether it was fairly applied. Narda admitted Davey would have likely received the scholarship if he had not declared a theology major. "So what's the state interest in denying him, just because he declared a double major, if all the same courses could have been taken by any student?"

Case may clarify voucher ruling

The Davey case is a follow-up to last year's landmark case of Zelman v. Simmons-Harris, where the Supreme Court upheld the use of state-funded vouchers, allowing children to attend private, parochial schools. (Full story)

The justices last year decided it was permissible to offer "neutral" voucher programs if they present a "genuine choice among options, public and private, secular and religious."

Yet despite that ruling, a legal hurdle remains over those states that explicitly ban the use of voucher and scholarship programs. Many of the justices appeared uncertain whether their 2002 decision would automatically apply to a person's freedom to choose theology for study.

While the Supreme Court has supported the broader idea of public vouchers for religious education, the justices in recent years have also denied government money for such protected rights as receiving an abortion.

Washington is among 37 states that have broader laws prohibiting spending tax dollars on religious training.

Church-state issues are expected to be a hot political topic in next year's election. The Supreme Court next spring will hear an appeal from a California atheist, who objects to his daughter being forced to hear the Pledge of Allegiance, because of the words "under God."

The case is Locke v. Davey, no. 02-1315.


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