A case of faith and college aid

The high court Tuesday considers whether a religion student can be denied state funds.

When Joshua Davey graduated from high school in 1999, he won a Washington State scholarship to help pay for his college tuition. But when he declared he wanted to major in theology and become a minister, the state retracted its aid offer.

In Washington, only one area of college learning is off limits for a state scholarship: the study of religion as a participant, rather than as an observer. That is because the state constitution forbids spending any state taxpayer money in support of religion.

Tuesday, the US Supreme Court takes up Mr. Davey's case to consider whether Washington State acted properly in upholding its strict separation of church and state, or, instead, violated Davey's federal constitutional right to freely practice his religion.

The dispute is one of the most important cases of the term. If Davey wins, it will mark an important step in eliminating what some analysts view as state-authorized hostility toward religion. Analysts also say such a decision would help smooth the way for school-voucher programs and government funding for faith-based initiatives in virtually every state.

On the other hand, if Washington wins, it would represent a major victory for those who believe that the best way to preserve religious liberty in America is by maintaining strict separation between church and state. Likewise, analysts say a decision favoring Washington would likely complicate school-voucher and faith-based initiatives in the roughly 20 states that enforce a more hard-line view of the church-state divide than the US Supreme Court.

"There is no question that Davey has a constitutional right to practice his religion, including pursuing a degree in theology," says William Collins, senior assistant attorney general, in his brief on behalf of Washington. "However, he does not have a constitutional right to have the state of Washington pay for it."

Lawyers for Davey say the state's position is discrimination against the religious. "By expressly singling out for special disabilities only those students, like Joshua Davey, who are pursuing theology degrees taught from a religious viewpoint, the state has committed a textbook violation of the free exercise clause of the First Amendment," says Jay Sekulow, in his brief on behalf of Davey.

Indeed, what makes the Davey case especially important is its focus, at least in part, on the First Amendment clause that mandates a right to free exercise of religion. "In these cases involving state money going to religious schools the question has always been, does the federal Constitution allow states to spend money in this fashion," says Aaron Caplan of the American Civil Liberties Union of Washington State. "This is the flip side of that, where they say the federal Constitution requires that the money be spent in this fashion, and that is a big change."

Under Washington's Promise Scholarship program, grants are awarded for a student's first two years of study based on three criterion: high school class rank, family income, and attendance at an in-state institution. Davey qualified. But a state law and a state constitutional provision created a fourth criteria for him: "No aid shall be awarded to a student who is pursuing a degree in theology."

Davey and his supporters say use of the scholarship for religious teaching does not implicate constitutional prohibitions because the money would only be spent for religious purposes as a result of Davey's personal choice, not the choice of the government. In 2002, the US Supreme Court upheld the constitutionality of school vouchers under the same reasoning.

"Here we are clearly in the mode of individual choice," says Richard Komer of the Institute for Justice in Washington, D.C. "These programs empower people to make choices. The government isn't choosing the grantees here. It is letting the beneficiaries use the money where they want."

Mr. Komer says the state offers choice except when the scholarship recipient seeks to study religion. "Washington is trying to steer their residents' choices: You can choose anything except religion taught from a religious perspective," he says.

But others say Washington as a sovereign state has the flexibility under its own constitution to adopt a more restrictive approach. "Within the range of acceptable options, there is nothing wrong with letting states pursue their own visions of religious freedom," says Mr. Caplan.

He adds in a friend-of-the-court brief that the Washington program is within the bounds of what is constitutionally acceptable. "It does not compel [Davey] to do anything that his religion prohibits or prohibit anything that his religion compels," Caplan writes.

Kenneth Starr filed a friend-of-the-court brief supporting Davey on behalf of the Fairness Foundation, a philanthropic organization. He says the Washington provision violates the high court's mandate of "evenhandedness" in church-state relations. "The irony of Washington State's discrimination-infected legal structure is this: devotees of Marxism may use Promise Scholarships to pursue degrees in accredited departments that school students in the idea that 'religion is the opiate of the masses,' " Mr. Starr writes. "Under current law, Promise Scholarships may be used to study religion from a standpoint of agnosticism, skepticism, condescension, or hostility. In fact, Promise Scholarships may be used for the study of religion from every conceivable standpoint, except the most traditional, commonplace standpoint down through the ages - the standpoint of faith."

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