Supreme Court case has landmark potential

Christian Century, Dec 27, 2003

A CASE THAT the Supreme Court accepted this month has the potential to create another legal landmark at a critical time for church-state relations, according to a group of First Amendment experts. The high court heard oral arguments December 2 on the appeal involving state funding for a student, Joshua Davey, who had planned to study theology, and court-watchers were left guessing on which way a likely 5-4 decision might fall.

Justice Stephen G. Breyer commented from the bench: "The implications of this case are breathtaking." Veteran reporters who cover the Supreme Court for the New York Times and the Los Angeles Times wrote that the questions from Sandra Day O'Connor, often a swing vote on close decisions, indicated she might side with four justices likeliest to uphold the state's action in denying the student's funding.

"What you're urging would have a major impact, would it not, on voucher programs?" asked O'Connor, Jay Sekulow, the chief counsel at the American Center for Law and Justice who represented Davey, said, "I don't think the court has to go that far here." But later Sekulow told reporters that excluding religious schools from voucher programs would be unconstitutional. "You cannot have targeted for exclusion a religious classification," he said outside the court.

A decision is expected before the court ends its session in June.

On the day before the justices heard oral arguments, the Pew Trust-supported Roundtable on Religion and Social Welfare Policy released a report analyzing that case and the current state of the law in varied areas of government funding for religious groups. "I can't think of another time in recent history when the constellation of issues surrounding church-state relations has been more prominent," said Richard Nathan, executive director of the Roundtable, which is based in the nation's capital.

The Locke v. Davey case "has the potential to he very significant," said Ira Lupu and Robert Tuttle, George Washington University Law School professors who authored the report and serve as the Roundtable's resident legal scholars. The court may decide whether states must, in some circumstances, provide funding for a program of religious education if it provides funding for other sorts of programs.

Washington state resident Davey received a state-funded tuition grant to attend a Seattle-area Bible college. However, the state revoked the scholarship when Davey declared a double major that included pastoral ministries. The state cited a provision in Washington's constitution that prohibits the state from spending any money on religious instruction. Davey sued the state and lost, but the ruling was reversed by the Ninth U.S. Circuit Court of Appeals, which said the state's decision violated Davey's right to free exercise of religion.

Washington's constitutional provision is similar to clauses in some three dozen other state constitutions, sometimes collectively referred to as "Blaine amendments" by supporters of public money for religious education. Some state constitutional provisions were modeled after a 19th-century amendment former Senator James Blaine of Maine unsuccessfully proposed to the U.S. Constitution.

While critics of the so-called 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 and other religious bodies.

Many groups that support government funding for religious institutions have filed friend-of-the-court briefs on Davey's side in the case, supporting his argument that Blaine-like state provisions unfairly violate free exercise of religion.

Lupu and Tuttle assert that a broad decision in Davey's favor on free-exercise grounds would have wide-ranging implications. "The consequences of accepting this argument in its broadest form are sweeping," the law professors write. "States will be obliged to include religious entities that otherwise meet relevant eligibility requirements in every program--school vouchers, or any sort of services--in which the state includes private secular entities."

Holly Hollman, general counsel for the Baptist Joint Committee on Public Affairs, said in a press release that such a decision would be a "quantum leap" for the Supreme Court to make.

"It is one thing to say that indirect funding of religious education is permissible: it is quite another to say it is required." The Baptist group was one of several to file friend-of-the-court briefs arguing against a broad ruling in Davey's favor.

A Washington Post columnist noted a twist in arguments by the Bush administration for cracking the church-state wall in this case. "It seems strange that so many conservatives who revere states' rights would, on this issue, use a federal court to overturn them. If vouchers are to be the order of the day, shouldn't voucher advocates win their battles state by state?" wrote E. J. Dionne in a column, even while adding that he dislikes the Blaine amendments because of their roots in anti-Catholic bigotry.