Posted on 03/16/2004 11:36:03 AM PST by blitzgig
The Supreme Court dived into the First Amendment last week and came up sputtering. The court ruled 7-2 that a state may discriminate against divinity students in its program of college scholarships, but the majority opinion by Chief Justice Rehnquist was remarkably unconvincing and the two dissents were uninspired. No one disputed the facts. Five years ago the state of Washington created a Promise Scholarship Program. The idea was to reward graduates from both public and private high schools who meet certain criteria. To be eligible, a student (1) must have graduated in the top 15 percent of his graduating class; (2) must have a family income less than 135 percent of the state's median; and (3) must use his grant at an accredited institution within the state.
There was also a (4): The applicant "is not pursuing a degree in theology."
Along came Joshua Davey. His high school grades were good. His family income met the test. He wanted to attend the fully accredited Northwest College in Kirkland, an affiliate of the Assemblies of God. There he proposed to pursue a double major in pastoral ministry and business management. The state put him on terms: He could change his major or forgo the scholarship.
Davey gave up the award and sued the state for violating his right to the free exercise of his religion. He lost in U.S. District Court but won in the 9th Circuit. There Judge Pamela Ann Rymer held that the state's policy "lacks neutrality on its face" and "facially discriminates on the basis of religion." Last week the Supreme Court reversed.
The constitutional provisions are only murkily clear. Under the First Amendment, government "shall make no law respecting an establishment of religion or prohibiting the free exercise thereof." But "no law" does not really mean "no law, and exercise that is "free" is not absolutely free.
Writing for the high court's majority, Rehnquist found "room for play in the joints." On the one hand, "there is no doubt that the state could, consistent with the federal Constitution, permit Promise Scholars to pursue a degree in devotional theology." The Establishment Clause does not stand in the way. The state "could" contribute to a student's preparation for the ministry.
On the other hand, Washington's own state constitution raises a formidable barrier. Since the earliest days of the Republic, states have prohibited spending tax dollars on the support of clergy. Such laws, said Rehnquist, imply no animus toward religion. In the case at hand, the burden imposed upon Davey is "relatively minor." Davey could accept the scholarship and still take courses in devotional theology. If his major is merely intellectual, Rehnquist appeared to be saying, the scholarship is in. If his major is vocational, it is out.
Justice Antonin Scalia, dissenting, had no problem in finding that Washington's policy discriminates on its face against religion. Here the state first makes a public benefit generally available. The baseline criteria are neutral -- good grades, low family income, state residency. Then the state carves out a solitary exception. "No field of study but religion is singled out for disfavor in this fashion."
The state could have avoided constitutional problems, Scalia observed, by making scholarships available only at state institutions or by rewarding only select fields of study.
Instead of exploring such options, the legislature voted to placate the taxpayers' "freedom of conscience" by adopting a discriminatory plan. In effect, the state imposes a penalty on students such as Davey. For them, the penalty is not "relatively minor." To give up a $3,000 scholarship as a matter of principle is not a minor matter at all.
As he sometimes has a way of doing, Justice Scalia let his pen run away with his intellect. He saw bogeymen: "Today's holding is limited to training the clergy. Logic is readily extendible, and there are plenty of directions to go. What next? 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?"
Ah, well. The case of Joshua Davey is something less than a landmark, but it marks one more retreat from the neutrality demanded by the Free Exercise clause. As for Davey himself, he's given up on the ministry and gone to Harvard instead. He leaves a tepid opinion behind.
Murky, especially when one tries to befuddle by substituting "government" for "Congress", eh?
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