- The Washington Times - Tuesday, December 2, 2003

The Bush administration yesterday asked the Supreme Court to overturn a century-old Washington state constitutional ban on public funding of religious instruction that 36 other states also have on their books.

“This is the plainest form of discrimination, because if a person wants to believe in God and wants to assume a position of religious leadership, he is singled out for … disqualification,” U.S. Solicitor General Theodore B. Olson said of Washington’s decision to strip Northwest College student Joshua Davey of a state-awarded scholarship because he declared theology as his major.

In oral arguments representing the administration, Mr. Olson supported a 9th U.S. Circuit Court of Appeals decision in favor of Mr. Davey’s right to the $2,667 scholarship over two years, which Washington state’s solicitor general said the student could have kept had he not declared theology his major.

“The unmistakable message [of the state law] is the study of religion and religious courses is disfavored and discouraged,” while state scholarship money can be used to study nonreligious or antireligious subjects, Mr. Olson told the high court.

The 9th Circuit ruled that the state law “violates the twin components of equality and neutrality” required by the First Amendment’s guarantee of free exercise of religion, he said.

Washington Gov. Gary Locke, Democrat, has petitioned the Supreme Court to overturn the 9th Circuit decision.

The Locke v. Davey case challenges the constitutionality of the so-called Blaine Amendments, which Congress forced on Washington state, Montana, and North and South Dakota in 1889 as a condition for ratifying statehood.

The amendments were named after Rep. James G. Blaine of Maine, then speaker of the U.S. House, who pushed them into law as part of his national crusade against Catholic immigrants.

Washington Solicitor General Narda Pierce said the state had the right to mandate greater restrictions on state support for religious practice and education than the U.S. Constitution requires.

“How do you reconcile that?” asked Justice Antonin Scalia. “The state is not permitted to discriminate between religious sects. It is also not permitted to discriminate between religion and nonreligion.”

Washington’s withdrawal of the scholarship, which Mr. Davey had won to study business administration and theology at the college affiliated with the evangelical Assembly of God Church, “is treating religion differently than nonreligion,” Justice Scalia said. “Why is that not a violation of the principle of neutrality?”

Mrs. Pierce said the state took “a broader view of conscience” by ensuring that all taxpayers would not be “compelled to have their tax dollars used to fund religious training.”

She said it was a state decision that was comparable to prohibiting taxpayer dollars from being used to pay for abortions, which offends many people of religious conviction.

Justices Sandra Day O’Connor and Stephen G. Breyer questioned the effect of the Davey case on government policy regarding school choice and publicly funded vouchers for students to attend private and religious schools.

“The implications of this case are breathtaking,” said Justice Breyer, who dissented last year in the court’s 5-4 Zelman v. Simmons-Harris decision that allowed use of taxpayer dollars for Ohio parents to send their children to religious schools.

In response to questioning by Justice O’Connor, Jay Alan Sekulow, Mr. Davey’s attorney, said 37 states have bans against public subsidies for religious instruction or the support of any religious establishment.

Douglas W. Kmiec, a constitutional law professor at Pepperdine University in Malibu, Calif., said Justice O’Connor is the court’s “pivot point” in the Davey case.

“A fundamental distinction in law is whether the money goes directly to an institution, or indirectly as a result of the private choices of an individual,” Mr. Kmiec said in an interview.

As in the Ohio voucher situation decided by the Zelman case, “the [Washington state] scholarship was payable to Joshua Davey. He got to decide how it was used.”

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