ONEWAY WALL:

Why can't a public scholarship fund a theology education? (TERRY EASTLAND, 3/03/04, Dallas Morning News)

The majority opinion is defensible – but only to a point. What makes the ruling hard to accept is that in past cases the court has said that when government makes a public benefit generally available, it can't withhold the benefit from some individuals solely on the basis of religion but must treat everyone equally. Had the court stuck to that principle, it would have ruled for Mr. Davey.

The court described the burden imposed on Mr. Davey as "relatively minor" and declined to "venture further into this difficult area." But the court might be forced to venture further; what if Washington now decides to prohibit Promise Scholars who aren't theology majors from taking theology courses? Or if it decides to prohibit Promise Scholars from even attending a religiously affiliated school like Northwest?

And what if other states decide to craft scholarship policies based on "less stringent" line-drawing that treats religion differently? Or if – to consider another area of policy – states begin to exclude otherwise qualified religious charities from competing for social service grants?

When would the burden on free exercise rights cease to be so minor? When would the court feel compelled to enforce the First Amendment principle of neutrality and equal treatment?

Joshua Davey isn't on track to be a church pastor. He's in his first year at the Harvard Law School. Maybe someday Counselor Davey will find himself in the Supreme Court, arguing against efforts to extend the logic of Locke vs. Davey.

Funny how those who normally insist that there should be a wall between church and state here insist that it is appropriate for the state to scrutinize a student's course of study to guard against religion.

MORE:
Holy Discrimination!: The Supreme Court approves religious discrimination. (Douglas W. Kmiec, 3/01/04, National Review)

The state of Washington's Promise Scholarship was a general benefit program available to everyone meeting academic merit standards, except, as it turns out, Joshua Davey, and others like him, who wanted to study both secular and religious subjects. In Joshua's case, he sought to combine business and pastoral ministry.

That a public law in 2004 discriminates on its face against religious believers is extraordinary enough. That seven justices thought this was perfectly fine is disheartening. The Supreme Court admitted that including religious students would not offend the "no establishment" clause. This is obvious since including religious students on evenhanded terms with everyone else could not reasonably be construed as an establishment of a church or an endorsement of a student's particular faith choice.

-Handicapping religion (Bruce Fein, March 2, 2004, Washington Times)

In dissent, Justice Antonin Scalia cogently lacerated the history and reasoning of the majority. During the Founding years of the nation, worries abounded that religious strife might be sparked by specific government funding of ministers of various Christian sects. Exemplary was James Madison's Memorial and Remonstrance Against Religious Assessments. It assailed a Virginia bill which provided: "[F]or the support of Christian teachers ... [a] sum payable for tax on the property within this Commonwealth, is hereby assessed." But not a syllable was said against extending to religion public benefits that were available generally, such as roads, firefighting or police services, or a municipal water supply.

In these circumstances, government neither appears nor intends to promote religion. It is scrupulously neutral between believers and nonbelievers. That would be the case if the PSP was evenhandedly opened to all applicants who satisfied its academic, income and attendance requirements. Any use of state scholarship monies that was directed to religious vocations would be a matter of private choice, neither encouraged nor discouraged by government.

That neutrality would avoid the type of political scheming or factions that would aggravate religious fault lines. Thus, the Supreme Court sermonized in Everson vs. Board of Education of Ewing (1947) in upholding New Jersey's free public transportation to pupils generally, including enrollees at sectarian institutions: "New Jersey cannot hamper its citizens in the free exercise of their own religion. Consequently, it cannot exclude individual Catholics, Lutherans, Mohammedans, Baptists, Jews, Methodists, nonbelievers, Presbyterians, or members of any other faith, because of their faith, or lack of it, from receiving the benefits of public welfare legislation."

If the free exercise clause means anything, it means preventing government from handicapping citizens in public life because of their faith.

Posted by Orrin Judd at March 6, 2004 10:55 AM