Just Case, Bad Trend

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 on 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, which was adopted in 1889, has a strong prohibition on providing 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 G. 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 receive 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 broad judgment that would rob states of the right to decide for themselves whether to give aid to religious schools at the elementary and secondary levels. 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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