- The Washington Times - Monday, March 1, 2004

The State of Washington awards handsome college and graduate scholarships to gifted students of modest means through the Promise Scholarship Program (PSP). But reminiscent of discrimination against blacks, Jews, or the Irish, a disturbing exception is celebrated. Students pursuing devotional degrees need not apply.

The state’s constitution prohibits underwriting degrees that are “devotional in nature or designed to induce religious faith.” The purpose is to discourage faith-based professions or vocations, an illicit government objective under the free exercise clause of the First Amendment.

Yet a decisive 7-2 majority in the U.S. Supreme Court constitutionally blessed the scholarship exclusion last week in Locke vs. Davey (Feb. 25, 2004). Religious neutrality — the customary commandment of the First Amendment — was cast out of the constitutional heavens.

Joshua Davey, otherwise qualified for a Promise Scholarship, chose enrollment at Northwest College, a private Christian institution affiliated with the Assemblies of God denomination. He aspired to a lifetime of ministry as a church pastor, and thus sought a pastoral ministries degree. That triggered his PSP blacklisting and a lawsuit alleging a violation of the free exercise clause.

Writing for the majority in Davey, Chief Justice William H. Rehnquist unpersuasively preached that church-state separation enshrined in the establishment clause of the First Amendment endorses financial taboos against religion.

The chief justice acknowledged that the independent and private choices of recipients to employ government funds for devotional purposes are undisturbing. Social Security payments, for example, may be used for tithing or zakat. Accordingly, Chief Justice Rehnquist conceded, “As such, there is no doubt that the state could, consistent with the Federal Constitution, permit Promise Scholars to pursue a degree in devotional theology … . ”

But he catechized that the state could place its thumb against religious training because of traditional popular hostility toward taxpayer funds to create a state-supported clergy: “Since the Founding of our country, there have been popular uprisings against procuring taxpayer funds to support church leaders, which was one of the hallmarks of an ‘established religion.’ ” The chief justice further insisted that the PSP government thumb was acceptably light because funding was available for religious education short of a devotional degree.

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. Clergy may not be disqualified from sitting in the legislature under the high court’s precedent in McDaniel vs. Paty (1978). Zoning laws and property tax exemptions may not fasten special burdens on religious institutions. Such discrimination against religion for the sake of discrimination epitomizes bigotry that the free exercise clause reprehends.

The PSP narrow exclusion betrays government deprecation of a tiny and politically weak minority: namely, citizens awakened to a religious calling with devotion of Prince Valiant in “The Pilgrim’s Progress.” But a bare desire to trample on an unpopular group cannot constitute a legitimate government interest under Department of Agriculture vs. Moreno (1973), a case that protected “hippies” and “hippie communes” from a food stamp exclusion.

Chief Justice Rehnquist recognized the poverty of reasoning that sustained the Davey decision. He expressly confined the holding to the PSP as currently operated by the State of Washington to forestall a slippery slope of antireligious legislation. But even one violation of the free exercise clause is one too many.

Bruce Fein is a constitutional lawyer and international consultant at Fein & Fein and the Lichfield Group.

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