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Mayflower
Registered Member
Date Joined Mar 2002
Total Posts : 445
| Posted 12/2/2003 5:16 AM (GMT -6) |   | SUPREME COURT TO HEAR ARGUMENTS ON FUNDING RELIGIOUS EDUCATION
By Jan Crawford Greenburg
Published Monday, December 1, 2003
CHICAGO TRIBUNE
WASHINGTON - (KRT) - Joshua Davey had been a freshman at a
Christian college in Washington state for all of two months when he got the unwelcome news: State officials were yanking away a scholarship he'd been counting on to help pay for his first year.
It wasn't poor grades or misconduct that cost Davey the scholarship,
but his course of study: Davey had declared a major in pastoral ministry,
and state officials concluded they couldn't use taxpayer money to help finance his religious training.
Given the option of changing his major or giving up the scholarship, Davey walked away from the two-year state Promise Scholarship, which he had received based on his grades and family income. But he also contacted a public interest law firm about pursuing legal action against the state, kicking off a four-year battle that will reach the U.S. Supreme Court on Tuesday.
"I really felt it was an injustice," said Davey, 23, now a first-year student at Harvard Law School. "The kind of reasons I wanted to go into the ministry -- to benefit society, help other people -- are exactly the kind of things the government should be encouraging."
But the issues in the case go far beyond whether Davey will be reimbursed for the scholarship, which amounted to $1,125 his first year. Many observers say the case has the potential to bolster state school voucher programs as well, because a ruling in Davey's favor could remove barriers to including religious schools in those programs.
"There are a lot of students in Josh Davey's situation -- where they've met the criteria, had excellent grades and needed economic help, yet were denied the ability to go to religious schools because of the religious affiliation," said Jay Sekulow, the chief counsel of the American Center for Law and Justice, who will argue on Davey's behalf Tuesday.
To Sekulow and Davey's supporters, excluding those students from state aid programs penalizes them because of their religious beliefs - a clear violation of
the 1st Amendment. They contend -- and a California-based federal appeals court agreed -- that Washington officials discriminated against Davey when they revoked his scholarship.
In its ruling last year, the appeals court said singling out a student because of his religious major and denying him a government benefit violates his ability to freely exercise his religious beliefs.
"The 1st Amendment declares: `Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof,' " the appeals court said. "Thus, the state may neither favor, nor disfavor, religion. A law targeting religious beliefs as such is never permissible."
Washington state officials counter that they weren't discriminating against anyone. They say they simply were complying with their state constitution, which erects a high wall to keep church and state separate. Washington and about a dozen other states have constitutions written to ensure an even greater separation of church and state than provided by the U.S. Constitution.
"We're defending the constitutional provision that provides that taxpayers should not be compelled to provide funding for religious activities, should not be compelled to fund religious activities with which they disagree," said Narda Pierce, the Washington solicitor general who will defend her state's policy before the Supreme Court.
But courts have held that the state constitutions are limited by the 1st Amendment's Free Exercise Clause, which prohibits states from infringing on a person's right to freely exercise religious beliefs. In other words, they can't erect so high a wall that they interfere with a person seeking to freely exercise beliefs.
The U.S. Court of Appeals for the 9th Circuit ruled that the state had done just that when it denied Davey a scholarship. But a dissenting judge argued that Washington officials were not suppressing Davey's religious beliefs when they declined to fund his religious instruction.
"He is free to practice his religion without restriction," the dissenting judge wrote. "The only state action here was a decision consonant with the state constitution, not funding `religious ... instruction.'''
Davey's case came about in the fall 1999.
After enrolling at Northwest College, a school near Seattle affiliated with the Assemblies of God church, Davey had declared a double major in pastoral ministries and business, planning to become a Christian minister. Two months later, state officials notified financial aid officers throughout the state that students pursuing theology degrees could not get the Promise Scholarship.
They said they were relying on Washington law dating back to a provision in the state's 1889 constitution, which provides that "no money or property shall be appropriated for or applied to any religious worship, exercise or instruction, or the support or any religious establishment."
Pierce, the Washington solicitor general, said Davey's course of study included an internship in pastoral ministries, in which he went to church and worked with a minister, as well as reading about the Bible.
"These are the kind of subject matters the legislature presumed would be involved in getting a degree in theology," Pierce said. "It's the kind of instruction framers of our constitution didn't want taxpayers to fund."
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Excerpt from:
JUSTICES TO CONSIDER SCHOLARSHIPS FOR THEOLOGY STUDENTS
By Anne Gearan, Associated Press
December 2, 2003
WASHINGTON - In a follow-up to its major ruling that allowed parents to use public tax money to send their children to religious schools, the Supreme Court is weighing whether governments can provide scholarships for some kinds of schooling but not for students who study theology.
The case the court was hearing Tuesday is in many ways the flip side of the emotional argument over school vouchers. The high court cleared the way for government-funded vouchers programs in 2002.
The latest case asks not whether governments
can use tax money to underwrite religious education (as the voucher question did), but whether when money is available, it must be available equally. . . . .
[end of excerpt]
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*The case is Locke v. Davey, 02-1315.
Resources for further research
on this story:
Supreme Court Web Site
http:www.supremecourtus.gov/
Recent Supreme Court Decisions
http://supct.law.cornell.edu/supct/
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Mayflower
Registered Member
Date Joined Mar 2002
Total Posts : 445
| Posted 12/2/2003 9:44 AM (GMT -6) | | Locke v. Davey
Docket Number: 02-1315
ABSTRACT:
Argued: December 2, 2003
FACTS OF THE CASE:
The Washington State Promise Scholarship, created by the state legislature in 1999, gives college scholarship money to talented students. However, this money cannot be used to obtain a degree in theology if the program is taught to cause belief. Washington's constitution prohibits funding religious instruction. The 1969 state code applied this ban to college financial aid.
Joshua Davey forfeited his Promise Scholarship money in order to major in pastoral ministries at a private Christian college. Davey filed suit in U.S. district court, claiming the state constitution's ban on funding religious instruction violated his
First Amendment right to free exercise of religion (in the U.S. Constitution).
The district court rejected Davey's claim.
The Ninth Circuit Court of Appeals reversed, concluding Davey's free exercise rights were violated.
QUESTION PRESENTED:
If a state provides college scholarships for secular instruction, does the First Amendment's free exercise clause require a state to fund religious instruction?
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No. 02-1315
In the Supreme Court of the United States
GARY LOCKE, GOVERNOR OF WASHINGTON,
ET AL., PETITIONERS
~ versus ~
JOSHUA DAVEY
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING RESPONDENT (Joshua Davey)
Amicus Brief:
CASE No. 02-1315: Locke v. Davey - Amicus (Merits)
http://www.usdoj.gov/osg/briefs/2003/3mer/1ami/2002-1315.mer.ami.html
PDF document:
http://www.usdoj.gov/osg/briefs/2003/3mer/1ami/2002-1315.mer.ami.pdf
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Mayflower
Registered Member
Date Joined Mar 2002
Total Posts : 445
| Posted 12/3/2003 5:53 AM (GMT -6) | | Summary of
Cato Institute
Friend-of-the-Court Brief
in Locke v. Davey:
WASHINGTON STATE'S "BLAINE AMENDMENT" VIOLATES
U.S. CONSTITUTION
State May Not Exclude Theology Students from Scholarship Program
WASHINGTON, D.C. - The Cato Institute, joined by the Institute for Justice, the Center for Education Reform, Citizens for Educational Freedom, and the Goldwater Institute, has filed a friend-of-the-court brief in Locke v. Davey, challenging Washington's exclusion of a theology student from the state's Promise Scholarship program. The case will be heard this coming term by the U.S. Supreme Court.
At the end of its 2001-02 term, the Supreme Court held that vouchers enabling parents to choose a sectarian school to educate their children need not offend the Establishment Clause of the First Amendment. That case, Zelman v. Simmons-Harris, was a huge victory for school choice proponents. This coming term, the Court will decide the flip-side of the school choice question: If a state elects to offer scholarships, but denies equal benefits to students who choose an education with religious elements, does the state violate the U.S. Constitution? That question is especially important because many state constitutions contain so-called Blaine Amendments, which might otherwise foreclose state funds from being used for religious purposes.
The brief argues that Washington has violated "no less than four provisions of the federal Constitution." First, the state's denial of a scholarship to Davey solely because he opted to pursue pastoral studies at a religious college violated his rights under the Free Exercise Clause of the First Amendment. Second, Washington's action constituted viewpoint discrimination under the Free Speech Clause. It was only because Davey's college "taught theology from the perspective of religious truth that Washington disqualified him from state aid." Third, in excluding theology majors, the state "plainly draws a line on the basis of religion, a suspect classification under the Equal Protection Clause of the Fourteenth Amendment." Finally, Washington has deliberately hindered religion as against non-religion. That violates the principle of neutrality that the Court has invoked in its Establishment Clause cases.
"Originally, Blaine Amendments were a bigoted attempt by the Protestant majority to fund their own schools while denying funds to Catholic schools," commented Roger Pilon, Cato's vice president for legal affairs. "Washington is not constitutionally required to provide scholarships to anyone, and may certainly exclude recipients on a religiously-neutral basis," Pilon continued. "But the state may not refuse a scholarship to Davey merely because his chosen curriculum was theology."
Robert A. Levy, Cato's senior fellow in constitutional studies added that "Washington's Blaine Amendment has the practical effect of favoring students who pursue non-religious rather than religious majors. By its implicit preference for secular education, the state has engaged in discrimination that the U.S. Constitution cannot permit."
[end]
*THE FULL TEXT OF THE BRIEF IS AVAILABLE AT:
http://www.cato.org/pubs/legalbriefs/locke.pdf
...
Addressing Washington State's 'Blaine Amendment,'
which denies scholarship funding to students pursuing a theology major.
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Mayflower
Registered Member
Date Joined Mar 2002
Total Posts : 445
| Posted 12/3/2003 5:58 AM (GMT -6) | | Published December 3, 2003
EXCERPTS FROM TUESDAY'S ORAL ARGUMENT IN THE CASE OF LOCKE v. DAVEY
By The Associated Press
Excerpts from Tuesday's Supreme Court arguments in Locke v. Davey, a case from the state of Washington involving whether taxpayer-funded scholarships can be used for religious studies.
WASHINGTON SOLICITOR GENERAL NARDA PIERCE: "To preserve freedom of conscience for all its citizens in matters of religious faith and belief, Washington's constitution limits the involvement of government. It limits both the ability to regulate religious activities and to fund religious activities.''
JUSTICE ANTONIN SCALIA: "What if a state prohibited only the study of theology from a Catholic perspective? Would that survive?''
PIERCE: "No, your honor, we don't believe it would. But what the state has done here is prohibited public funds for religious instruction wherever it occurs, including in a college.''
SCALIA:"Wait. How do you reconcile that? That's what I don't understand. It seems to me that if you say it does not violate the religion clauses to prohibit the use for any religious instruction whatever, you would also have to say that it does not violate the religion clauses to say no public funds shall be spent for Jewish theology studies.
"Why, I mean, the state is not permitted to discriminate between religious sects, but it's just as much not permitted to discriminate between religion in general and non-religion. So how can you possibly, I mean, if we say that you can do this, it seems to me, we have to say you can also prohibit Jewish studies.''
U.S. SOLICITOR GENERAL THEODORE OLSON: "The Promise Scholarship program practices the plainest form of religious discrimination. It disqualifies the one course of study that is taught from a religious perspective. The clear and unmistakable message is that religion and preparation for a career in the ministry is disfavored and discouraged."
JUSTICE SANDRA DAY O'CONNOR:"Well, but of course, there's been a couple of centuries of practice in this country of not funding religious instruction by tax money. I mean, that's, that's as old as the country itself, isn't it?''
OLSON: "Well, yes, it is. But there is the other tradition that is as old as the country itself, is the free exercise component of the religion clauses, which this court has said repeatedly mandates neutrality.''
JUSTICE JOHN PAUL STEVENS:"But how is his free exercise chilled at all? Can't he practice his religion just as he always would and become a minister?
OLSON: "Well, it's ...'' (interrupted)
STEVENS: "He just has to pay for it.''
JUSTICE STEPHEN BREYER: "What is your response to the following concern that's been brought up a few times but I'd like you to address it directly. This case is perhaps a small matter of a distinction that doesn't make all that much sense, but makes some. But the implications of this case are breathtaking, that it would mean if your side wins, that every program, not just educational programs, but nursing programs, hospital programs, social welfare programs, contracting programs throughout the governments would go over, you'd have to go over each of them and there'd be a claim in each instance that they cannot be purely secular, that they must fund all religions who want to do the same thing, and that those religions, by the way, though it may be an excellent principle, may get into fights with each other about billions and billions of dollars. So, which is something about which I have written about, which you know. All right. So, I'd like you to address that.''
OLSON:"Yes, Justice Breyer. It is not a major step at all in this court's jurisprudence to say that those funding programs for medicine, doctors, nurses, cannot distinguish and not discriminate against a person who decides to go to a Catholic nurse or to a Catholic doctor.''
[end]
CITED SOURCE:
The transcript was recorded by Alderson Reporting Co.
The Associated Press supplied the identities of the justices who asked questions....
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Mayflower
Registered Member
Date Joined Mar 2002
Total Posts : 445
| Posted 12/8/2003 6:29 PM (GMT -6) | | Published in the
PIONEER PRESS (St. Paul, Minnesota)
December 8, 2003
RELIGIOUS EDUCATION CASE TESTS COURT'S WISDOM
E.J. Dionne Jr.
Syndicated Columnist, Washington Post
We would all be better off if the state of Washington had given Joshua Davey his state scholarship to study theology at an evangelical college.
Because Davey was denied his scholarship, he sued. Because Davey sued, the U.S. Supreme Court may be forced to make a ruling that unsettles more than it settles in our national argument about religious liberty.
The facts in Davey's case, heard by the Supreme Court last Tuesday, are straightforward:
Davey had qualified for Washington's admirable Promise Scholarship program, designed to help lower-income students attend college in the state. Davey decided to attend Northwest College, an evangelical school, and pursue a double major in pastoral ministries and business management and administration. He was training to be a pastor. (Inspired by his legal saga, Davey is now at Harvard Law School.)
Washington's Constitution, adopted in 1889, has a strong prohibition on aid to religion: "No public money or property shall be appropriated for or applied to any religious worship, exercise or instruction, or the support of any religious establishment."
The state government read this provision as meaning that taxpayer money, through its scholarship program, could not be used to train Davey as a pastor.
As a result, all heaven has broken loose.
The Davey case is important because Washington is one of 37 states that have versions of what are called "Blaine Amendments," named after James G. Blaine, a 19th-century Republican politician. Blaine had proposed an amendment to the U.S. Constitution barring states from appropriating any tax money, including money raised "for the support of public schools," for use by "religious sects."
The Blaine Amendment — it failed at the national level — was widely seen as an attempt by the country's Protestant majority to block government support for Catholic schools.
Fights from well over a century ago still have resonance, as a brief filed by the Becket Fund for Religious Liberty, the Catholic League for Religious and Civil Rights and a group of historians made clear. "American nativism succeeded not only in backing its hostility to Catholic immigrants (and especially their schools) with the force of law," they wrote, "but in cloaking that hostility with the rhetoric of religious freedom and the authority of the founders."
Good cases can make for bad law, but great reading. Another group of historians argued in a fascinating opposing brief that the Blaine Amendment was about more than anti-Catholicism. I thought the Becket Fund folks had the better of the argument, but then I'm Catholic.
These old battles have great relevance to our time. The Supreme Court ruled last year that the Constitution does not forbid state aid to religious schools through vouchers. But the various state Blaine Amendments almost certainly forbid such assistance. The court could use Davey's case to overturn all the Blaine Amendments and establish, in effect, a right for all Americans to get government help to attend religious schools. Justice Stephen Breyer was not exaggerating on Tuesday when he said: "The implications of this case are breathtaking."
And that's why I wish this case had never arisen. I dislike the Blaine Amendments because of their roots in anti-Catholic bigotry. But 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? And should those who strongly oppose the Supreme Court's overturning of the states' authority to pass laws on abortion in Roe v. Wade turn around and use the same court to impose their view on vouchers?
Yet on the merits of Davey's particular situation, it's hard to defend the state of Washington's judgment. There is a long history of allowing individuals who get public money to pursue their own path in higher education, to study what they want at Southern Methodist, Yeshiva and Notre Dame — and at Wisconsin, Michigan and North Carolina. College students who get government help should be free to study physics, political science or theology. There are worse things to do with your college career than to train for the ministry.
The trouble with this case is that it's hard for the court to rule in favor of Davey, which it should, without making a sweeping judgment that would rob states of the right to decide for themselves whether to give aid to religious schools at the elementary and secondary level. Normally I am no fan of fractured and intellectually incoherent Supreme Court decisions. But this time a split decision, on the narrowest possible grounds, may be exactly what's required.
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