- The Washington Times - Friday, December 5, 2003

When Joshua Davey arrived at Northwest College outside Seattle in the fall of 1999, he had a state “Promise Scholarship” and a plan to become a church pastor. Then he made a surprising discovery: He could keep one or the other, but not both.

Mr. Davey won the scholarship because he met the requirements — ranking in the top 10 percent of his high school class, coming from a family below a designated income level and headed for an accredited college. His choice of schools was one affiliated with the conservative Assemblies of God, and he decided on a double major in business and pastoral ministries.

Then he got the bad news about his scholarship: It was not available to anyone pursuing a theology degree. The $1,125 he had counted on to help finance his freshman year was gone, unless he was prepared to give up his religion major. He wasn’t.

The state says this policy is dictated by its constitution, which says, “No public money or property shall be appropriated for or applied to any religious worship, exercise or instruction, or the support of any religious establishment.” This provision was one of the anti-Catholic “Blaine amendments” adopted by many states in the 19th and early 20th centuries — not to separate church and state, but to favor public schools whose religious teachings were of the prevailing Protestant variety.

The state constitution, however, has to yield before the U.S. Constitution, and that is where the state of Washington has a problem. The First Amendment says in essence that the government must be neutral about faith — neither promoting it nor penalizing it. And denying college financial aid to someone simply because he chooses to study religion is anything but neutral.

Mr. Davey filed a lawsuit challenging the policy, and this week the Supreme Court heard his case. It has to decide whether to uphold an appeals court verdict finding the ban unconstitutional. Judging from the reservations expressed by various justices during oral arguments, the court may be reluctant to do that. But given discrimination this overt, it would be hard to justify doing anything else.

The state offers only the lamest excuses for the rule, saying it doesn’t prevent Mr. Davey from pursuing his religious studies. As it happens, he did just that, sans scholarship. Just as he has a perfect right to study theology, the state insists, it has a perfect right not to pay for it.

There is a kernel of truth in this claim, but it doesn’t add up to a cornstalk. If the state prefers not to finance college education at nonstate schools, it doesn’t have to. If it wants to subsidize only specific career options, such as teaching, it may do that without subsidizing all others. But if it’s going to hand out benefits that are generally available to anyone for a public purpose such as education, it can’t withhold them from people merely for exercising a constitutional right in a way the state doesn’t like.

A special tax on Christians — or on nonbelievers — would obviously offend the First Amendment. Forcing Mr. Davey to abandon either his conscience or his scholarship has the same effect, imposing the equivalent of a $1,125 fine that he wouldn’t have to pay if he had chosen any other major.

For that matter, he could have majored in religion at a school where it was taught from a “purely academic” perspective. His major at Northwest was unacceptable only because it taught religion in a manner “designed to induce religious faith.”

In 1995, the Supreme Court ruled against the University of Virginia because, though it paid printing costs for material published by student organizations, it refused to pay them for any publication that promotes a religious point of view. That policy, the court said, amounted to illegal “viewpoint discrimination.” Washington’s policy is even more flagrant, because some approaches to religion are permissible while others are not.

Some justices expressed the fear that if Washington can’t bar scholarships for theology majors, governments will be forced to extend subsidies to religious schools, hospitals and charities. But as University of Texas law professor Douglas Laycock notes, “The state doesn’t have to fund anything private.” It can choose to address public needs strictly through government institutions. Once it decides to give money to individuals for some approved purpose, though, it has to be impartial.

The First Amendment was intended to let Americans make their own religious choices, without being pushed by the government to believe or not to believe. Mr. Davey decided he would rather pile up treasure in heaven than on Earth, but he shouldn’t have had to choose.

Steve Chapman is a nationally syndicated columnist.

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