Locke v. Davey oral arguments heard

Deep divisions and considerable ambivalence over the proper relationship between church and state emerged at the Supreme Court Tuesday, as the justices heard oral arguments on the constitutionality of a Washington state scholarship program that aids academically excellent low-income college students — except those who major in theology.

The case, Locke v. Davey, is a follow-on to the court’s 5-4 ruling in 2002 that upheld the use of state private-school tuition vouchers to pay for religious-school education. In that case, the court ruled that the Constitution’s ban on the establishment of an official religion does not prohibit such aid. In this case, the question is whether the Constitution’s guarantee of freedom to worship requires that such aid be extended on equal terms to support both religious and secular instruction.

The court’s decision could have major implications for the future of school vouchers. Washington’s ban on aid to theology majors was based on a state constitutional provision that prohibits the use of state money to fund religious instruction; about three-fifths of the states have similar provisions, and school-voucher opponents have relied on them to continue their legal fight against vouchers at the state level.

If the court invalidates Washington’s ban, others like it could be struck down as well.

Depending on the breadth of the court’s ultimate ruling, the case could also touch on whether government can ever exclude religious institutions from the distribution of general aid to social programs, a question at the heart of the Bush administration’s push for greater federal support to "faith-based" social welfare organizations.

Arguing the case for Joshua Davey, who was denied the use of Washington state’s Promise Scholarship to pursue a double major in pastoral ministries and business administration at Northwest College, Jay A. Sekulow urged the court to see the Washington program as "a law that discriminate(s)" against religion. He was echoed by Solicitor General Theodore B. Olson, who said "the Promise Scholarship practices the plainest form of religious discrimination."

But several members of the court balked at that interpretation, suggesting that states may erect a higher wall of separation between church and state than the federal Constitution does.

"Is there any space between what … a state is permitted to fund … and what it must fund, and if so, what fills up that space?" Justice Ruth Bader Ginsburg asked.

Justice Stephen Breyer told Olson that "the implications of this case are breathtaking, that it would mean if your side wins, that every program — not just nursing programs, hospital programs, social welfare programs, contracting programs throughout the government … you’d have to go over each of them, and there’d be a claim in each instance that they cannot be purely secular."

Breyer suggested that this would lead to "fights" among religions over "billions and billions of dollars."

Olson replied that the result would not be "as far-reaching as the sense of doom that your question suggested."

Breyer’s doubts had previously been voiced by Justice Sandra Day O’Connor, who, as is often the case, appeared to occupy a middle position on the court.

O’Connor strongly supported the court’s 2002 school voucher ruling, but yesterday she seemed troubled that this case might lead to the complete elimination of "a couple of centuries in this country of not funding religious instruction by tax money," as she put it to Olson.

Addressing Sekulow, she elicited the information that 37 states have state constitutional provisions similar to Washington state’s, then observed, "So the decision here could have a very broad impact, I assume."

Still, for O’Connor, a crucial constitutional distinction in such matters is that government aid must arrive in religious institutions through the private choice of individuals. Her belief that the school voucher program at issue in the 2002 case channeled money through individual choice cemented her support for it.

At some points Tuesday, her questions implied that she might see the Promise Scholarship, which delivers checks to students for use in paying tuition at the school of their choice, in the same way.

"I’m just trying to find out how it works, whether it’s like a voucher program, you give the money to the student and the student decides how to use it," she told Narda Pierce, Washington state’s solicitor general.

Pierce replied that the money was "not like a paycheck," which an individual can use for any purpose.

Justice Anthony Kennedy repeatedly pressed Pierce to explain what interest Washington’s policy served, since a student could have taken almost the same courses as long as he or she did not declare a major in theology.

"Certainly one of the underlying values … is not to require people to support the promotion of a doctrine or religious belief with which they may not agree," Pierce said.

O’Connor seemed to voice some sympathy for that point, noting to Sekulow, "maybe it’s more expensive (for Davey) to go to school, but how does that violate his free exercise of religion?"

A decision in the case is expected by July.

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Title: Locke v. Davey oral arguments heard | Author: Charles Lane | Section: News | Published Date: 2003-12-03 | Internal ID: 3658