ASHINGTON,
Feb. 25 — The Supreme Court ruled Wednesday that states that subsidize
secular study at the college level may withhold the scholarships from
students preparing for the ministry.
The 7-to-2 decision, upholding the eligibility requirements of the
Promise Scholarship program in Washington State, was a setback for advocates
of using publicly financed vouchers to pay for religious school tuition.
Joined by the Bush administration, advocates of "school choice" programs
sought to use this case to establish a broad principle that an institution's
religious affiliation should not make it ineligible to participate in
general programs of government aid.
Those deeper implications had made this case one of the most closely
watched of the court's current term. Two years ago, the court ruled in a
case from Ohio that extending voucher programs to cover parochial school
tuition was constitutionally permissible. The Washington case raised the
further question of whether it was not only permissible but, at least under
some circumstances, constitutionally required, an urgent question given that
voucher proposals have run into political and legal obstacles in a number of
states and have spread much more slowly than advocates had hoped.
The opinion by Chief Justice William H. Rehnquist did not address
school-choice programs directly and left important questions to be answered
in future cases. But it was a decisive rejection of the proposition that a
government that subsidizes a secular activity must necessarily, as a matter
of the constitutional free exercise of religion, subsidize the comparable
religious activity as well.
The chief justice said the distinction that Washington made in its
five-year-old scholarship program reflected the state's longstanding
interest in avoiding an "establishment" of religion, rather than hostility
or animus toward religion. He said that while the Washington Constitution
mirrored the prohibitions found in many of the early state constitutions
against using tax money to support ministers, it was nonetheless quite
protective of religion in many respects.
"The state has merely chosen not to fund a distinct category of
instruction," he said, adding that "training for religious professions and
training for secular professions are not fungible." If the state wanted to
pay for religious training, it could do so, he said, adding that the case
simply demonstrated that "there are some state actions permitted by the
Establishment Clause but not required by the Free Exercise Clause."
New York, New Jersey and nine other states in addition to Washington have
scholarship programs that bar the use of the money for religious training. A
similar prohibition in Michigan is under challenge in federal court there.
In a dissenting opinion, Justice Antonin Scalia, joined by Justice
Clarence Thomas, objected that the court was validating antireligious
discrimination and reflecting "a trendy disdain for deep religious
conviction."
"Let there be no doubt: This case is about discrimination against a
religious minority," Justice Scalia said, referring to Joshua Davey, a
member of the evangelical Assemblies of God denomination and the student who
brought the case.
"What next?" Justice Scalia asked. "Will we deny priests and nuns their
prescription-drug benefits on the ground that taxpayers' freedom of
conscience forbids medicating the clergy at public expense?"
The Washington Legislature devised its scholarship program in 1999 to
reflect a provision in the Washington Constitution that bars the use of
public money to support "any religious worship, exercise or instruction."
Consequently, students who were otherwise qualified for the scholarships on
the basis of academic merit and financial need were ineligible if they
wanted to use the money to major in theology and train for the ministry.
On the other hand, students did not forfeit their eligibility simply by
taking courses in religion or by attending a religious college, as long as
they pursued a secular major there.
Thirty-six states have constitutional barriers similar to Washington's to
supporting religious institutions with public money, and these have proved
to be substantial obstacles to the spread of the school-choice movement.
Supporters of vouchers had argued that these provisions were the product of
bigotry.
The exclusion of theology majors was challenged by Mr. Davey, who in 1999
enrolled in a college affiliated with the Assemblies of God and declared a
major in pastoral ministries. Although he was otherwise qualified to be a
Promise Scholar and to apply his $1,125 scholarship to his expenses at
Northwest College in Kirkland, Wash., officials there told him that because
of his intended major, he could not have the money.
Represented by the American Center for Law and Justice, a law firm
affiliated with the Rev. Pat Robertson, Mr. Davey sued the state, asserting
his constitutional rights to the free exercise of religion, free speech and
equal protection. He lost in federal district court in Seattle. But the
United States Court of Appeals for the Ninth Circuit, in San Francisco,
ruled in his favor in 2002, holding that the state had singled out religion
for unfavorable treatment.
Gov. Gary Locke of Washington appealed to the Supreme Court.
Mr. Davey, meanwhile, continued his college education, graduated at the
top of his class and is now in his first year at Harvard Law School.
The Bush administration entered the case on Mr. Davey's side to seek a
decision helpful to the president's initiative under which religious
organizations can receive federal money to provide services. Scott
McClellan, the White House press secretary, said Wednesday that "the
president will certainly continue to work to make sure that faith-based
groups are not discriminated against." Mr. McClellan called the ruling "very
narrow."
It was narrow to the extent that it specifically addressed professional
training for the ministry at the college level. It therefore left open the
question of whether elementary and high schools that offer a general
education, though with religious sponsorship, can be carved out from a
general voucher program.
"The court went out of its way to limit the context," said Clint Bolick,
vice president of the Institute for Justice, a strong supporter of vouchers
that filed a brief in the case. Mr. Bolick's organization is handling
school-choice cases in Colorado and Florida, where programs were struck down
in state court. He said in an interview that he would take those cases to
the Supreme Court, if necessary, to test the limits of the ruling Wednesday
in Locke v. Davey, No. 02-1315.
Barry Lynn, executive director of Americans United for Separation of
Church and State, which supported the state, agreed that the decision was
not the court's last word. But Mr. Lynn said its significance lay in the
court's rejection of "the effort by religious conservatives to use this as a
breakthrough case for their theory of free exercise, that if you fund the
secular you must fund the religious."