Kmiec: The Supreme Court approves religious discrimination

Holy Discrimination!
The Supreme Court approves religious discrimination.
By Douglas W. Kmiec

The Supreme Court last week got two propositions badly confused. States do not have the obligation to subsidize anyone's constitutional rights, but until now, it was also true that states could not discriminate on the basis of faith in the allocation of general benefits.

In Locke v. Davey, the Court approved overt religious discrimination. That the Court's opinion excludes religious believers, notwithstanding the Constitution's express guarantee of the free exercise of religion is surely ironic given that it has so recently and so casually manufactured constitutional protections for those who wish to engage in homosexual sodomy or display virtual pornography on the Internet.

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.

If keeping church and state separate does not justify such blatant discrimination, what does? Not much. Washington does have a state constitutional provision that "no public money...shall be appropriated for or applied to any religious worship, exercise or instruction...." College study of theology may well be such instruction, but merely reciting the state provision hardly supplies a federal constitutional answer when the paramount law of the land prohibits states from passing any law "prohibiting the free exercise of religion."

Here, the Court not only begged the question, but disregarded precedent. For example, the Court had previously held that a state legislature couldn't just exclude clergymen from its state assembly or employ municipal laws to selectively prohibit religious practices. While the Court tries to distance itself from these settled matters by saying these were criminal or civil penalties, not merely an exclusion from benefits, that is a distinction without a difference — especially given the pervasiveness of government programs in all of our lives.

Surely the Washington State cannot now decide that clergymen, or perhaps all religious believers, can be excluded from workman's compensation, or health or disability funds. Only time will tell, but Justice Scalia in dissent thought there no limiting principle in the opinion to prevent it. Moreover, it is fair to assume that the opinion will be readily waved about to slow the expansion of school choice or the role of highly effective faith-based social services.

Largely unexamined in the case was the fact that state constitutional provisions explicitly discriminating against religious participation in public programs exist in 37 states, and were a product of a nativist, anti-Catholic movement in the 19th century associated with the political movement of the so-called "Know-Nothings." Were the discriminations of the present day to be more clearly premised upon the bigotry of the past, the Court might yet reach a different conclusion. Let's hope so: Abraham Lincoln wrote: "When the Know-Nothings get control, [the Declaration of Independence] will read 'all men are created equal except Negroes and foreigners and Catholics, a fact that so disgusted Lincoln that he surmised that "when it comes to this, I shall prefer emigrating to some country where they make no pretense of loving liberty."

In the end, the only explanation Washington could give for disadvantaging students of faith was because it wanted to do so. By anyone's constitutional calculus that should be an inadequate basis for denying an express constitutional right. It is far less than even a pretense of religious liberty.

— Douglas W. Kmiec is chair and professor of constitutional law at Pepperdine University. He a is former constitutional legal counsel to Presidents Reagan and Bush.

This could also mean that courses in non-Christian religious studies should be affected as well. Schools, being a business, may rue the day they cut short many of their courses, e.g., Kwanza, Islamic, Shamanic, etc. studies for the sake of separation of Church and State.

There are reasons, good or bad, why government officials and/or the people through their legislators establish policy. The Constitution places limits, which can frustrate these intents.

The State of Washington probably wanted to get the most bang for its buck. They want the students getting grants to give something back. They probably view the study of theology as perhaps personally enriching, but not useful. What the author is saying is that the Constitution demands religiosity to be specifically excluded from a determination of what is or is not useful.

What is a little deeper under the covers is that there is a powerful force in the electorate and the elite that is deadset to marginalize religion. I happen to be of the minority opinion that if you are going to have social programs, then faith-based ones have a better than average chance of success, specialized schools that have a religious component, may well be superior to a given public school. This ruling, which many view to be tangential to school choice, doesn't help by lending credence to the view that government can specifically exclude religious groups from consideration.

There is no federal law pertaining to discrimination as per this case - state monetary aid for schooling. One cannot discriminate based on religion in employment, education - that is acceptace to a school, and no discrimination in housing. All the SCOTUS did was bounce the ball back to the states - which is fair - because there is no federal law prohibiting this kind of discrimination and there were no violations of the Constittuion itself. No one has a "right" to acess state funds for education - any kind of education.

When Scalia talks people should listen.

As evidence I give you his dissent in Lawrence v Texas.

He is correct here as well, if it is simply the state of Washingtons whim to exclude theology, they can certainly choose to exclude benefits to clergy on another whim.

The anit Catholic bigot Blane marches on.

The case was a First Amendment free exercise case. Under the Doctrine of Incorporation, that is a federal issue. SCOTUS did not decline the case or rule it not a federal issue, it simply decided that the Washington State law did not violate free exercise clause protections.

Let us say Washington set up funds for education grants, but denied them to Polka-Dotted people, it would still violate equal protection clause of the 14th amendment, despite the fact that, as you say, noone has a "right" to access state funds for education.

Let us say Washington built a state park, but stipulated that noone could visibly pray on the grounds of the park. That would violate free exercise, yes?

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