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Student’s suit may shift line on religion

The Seattle Times, USA
Nov. 30, 2003
Janet I. Thu
seattletimes.nwsource.com

ReligionNewsBlog.com • Monday December 1, 2003

Back in 2000, Joshua Davey of Spokane thought his lawsuit was a relatively small matter: fighting to keep a $1,125 state scholarship so he could major in theology at Kirkland’s Northwest College.

Three years later, Davey’s suit is considered the biggest church-state case before the U.S. Supreme Court this term. The court’s decision could affect scholarship and school-voucher systems in up to 37 states.

Oral arguments are set for Tuesday.

Davey sued Washington state when it rescinded a grant to help pay his tuition at private Northwest College because he decided to study theology. Since then, lower courts have reached conflicting decisions on the case, and this year the state asked the Supreme Court to hear it. “I never imagined four years ago it would’ve come to this point,” said Davey, 23, who decided not to become a minister and is now a first-year student at Harvard Law School. “I’m glad the legal issues are significant enough that it would be heard before the court.”

Indeed, the issues are important enough that many high-profile groups, from the Bush administration to the American Civil Liberties Union, have filed friend-of-the-court briefs.

The case, known as Locke v. Davey, pits the U.S. Constitution’s guarantee of freedom of religious exercise against the state constitution’s ban on using public money to fund religion.

Washington, like 36 other states, has restrictions on government funding of religion that are broader and tougher than the federal Constitution’s. Some of those restrictions are barriers to setting up tuition-voucher systems that would include religious education.

The Locke v. Davey case also raises fundamental questions about church-state separation: Should taxpayers be required to help pay for someone studying to become a religious leader? Is that tantamount to government aiding the establishment of a religion?

Or is it discriminatory, and a denial of an individual’s right to free exercise of religion, to exclude education funding for aspiring religious leaders if the state gives such money to would-be doctors and engineers?

The questions are not academic. If the court delivers a broad ruling saying states cannot have such restrictive rules on religious funding, it could result in a situation where “any government at any level in any state that sets up any voucherlike arrangement must include religious institutions or individuals,” said Charles Haynes, senior scholar with the Freedom Forum’s First Amendment Center.

In Washington state, which has no K-12 voucher system, the impact would primarily be on higher-education financial aid.

Separation less strict

Davey’s case has also become the latest in a national struggle to define where the line should be drawn between church and state. It’s a line that, since about the 1980s, has moved gradually away from strict separation.

Recent court decisions and actions of the current Bush administration have moved the government toward what some call neutrality or equal treatment where, providing there is a choice for consumers between secular and religious organizations, government cannot preclude funding for religious institutions or individuals if it provides funding for secular ones.

The Bush administration’s faith-based initiatives are intended, for instance, to place religious institutions on the same footing as secular ones in competing for government dollars to provide social services.

And last year, in a landmark decision, the Supreme Court ruled in an Ohio case that government vouchers are constitutional if they provide parents with choices among religious and secular schools.

Finding the dividing line

What the Supreme Court has not resolved, Haynes said, is whether states must include religious schools when they set up voucher programs, and at what point government funding that includes religious institutions violates the First Amendment because it aids religion.

Davey’s saga began when he enrolled in 1999 at Northwest College, which is affiliated with the Assemblies of God. The state initially gave him a $1,125 Promise Scholarship, an award for low- to middle-income students with good grades. But after state officials learned he would major in pastoral ministries, along with business management and administration, the scholarship was rescinded.

Washington is one of at least 14 states that explicitly bar theology students from receiving state money.

In 2000, Davey filed suit in federal District Court, which ruled in the state’s favor.

But the 9th U.S. Circuit Court of Appeals ruled the state’s scholarship criteria were discriminatory because they effectively suppressed “religious points of view” and violated the First Amendment’s guarantee of free exercise of religion and the 14th Amendment’s equal-protection clause.

In March, the state appealed the 9th Circuit opinion, prompting the Supreme Court to announce that it would hear the case. The court will likely release its final decision shortly before it adjourns in June 2004.

Washington Solicitor General Narda Pierce, who will present arguments on behalf of Gov. Gary Locke, contends the state is “defending the constitutional provision that taxpayers should not be compelled to provide funding for religious activities.”

Further, she argues that taxpayers shouldn’t be forced to pay for something that could violate their individual consciences by providing “funding for instruction for religious beliefs to which they may or may not subscribe.”

‘About discrimination’

But Gene Kapp, spokesman for the American Center for Law and Justice, which represents Davey legally, contends that not awarding Davey a scholarship just because he was studying for the ministry is “clearly a case about discrimination. Carving out a religious exclusion is not constitutional.”

Heads of religious schools have offered differing opinions.

The Rev. Stephen Sundborg, a Jesuit and president of Seattle University, has said he disagrees with using state scholarship money for people training for ministry. “It would, in effect, be providing money to help in the development of that (particular) church,” he said.

Howard Wilson, vice president of student life at Fuller Theological Seminary in Pasadena, Calif., has said banning taxpayer money for scholarships for ministry students is discriminatory. “It says a person who’s going to become a doctor has more to contribute than a person who’s going to become a pastor.”

During this term, the Supreme Court will hear another well-publicized church-state case: whether the words “under God” in the Pledge of Allegiance are unconstitutional.

But it’s the Locke v. Davey case that, according to the First Amendment Center’s Haynes, could have the most impact on principles of religious freedom: “For voucher programs, for faith-based initiatives, for public policy and for the future of government involvement with religion, this is the big case.”

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