Disciminating Against Religioius Instruction

James G. Blaine was a Republican Speaker of the House of Representatives in the late 1800’s who tried to amend the US Constitution to forbid the states from funding “sectarian” institutions. At that time the term “nonsectarian” did not carry the connotation of “secular” as it does now. The Protestant majority believed that “sectarian” described groups out of the Protestant main stream. Many were concerned that state funds might indirectly aid Catholics who were establishing their own schools to avoid the Protestant-centric instruction common at the time. Blaine’s amendment to the US Constitution managed to pass in the House, but then died when if failed to garner the super majority required in the Senate. Nonetheless, Blaine used his political influence to urge some states to pass similar amendments and to insist that as new states enter the union they attach Blaine amendments to their constitutions.

One such amendment is incorporated in the constitution of the State of Washington. It is far more restrictive than the US Constitution and explicitly states that “No public money or property shall be appropriated for or applied to any religious worship, exercise for instruction, or the support of any religious establishment.” The question the US Supreme Court is taking up in the case of Locke v. Davey is whether the prohibition is written so broadly that it infringes on the “free exercise” clause of the First Amendment.

This case began when Joshua Davey was granted the Promise Scholarship by the State of Washington. The scholarship was granted on the basis of academic excellence and need. The scholarship was valid for any field of study save one, the study of theology taught from a religious perspective, {\it i.e.,} instruction that “resembles worship and manifests a devotion to religion and religious principles in thought feeling, belief, or conduct.” The limitation on the scholarship was consistent with the state constitution and relevant state law. Davey was forced to forego the scholarship. Nonetheless, Davey was convinced the restrictions violated his First Amendment rights. If Davey were willing to fudge a little on his course of study, he probably could have managed to study the courses he wanted to and still retain the scholarship. Instead of sacrificing his integrity, he sued.

Davey lost at trial. However, the Ninth Circuit Court of Appeals, the notorious Circuit Court famous for striking down the use of “under God” in the Pledge of Allegiance and the Circuit Court with dubious distinction of having its decisions overturned by the US Supreme Court more frequently than any other Circuit Count, surprisingly ruled in favor of Davey. Wanting to retain the prohibition against the use of scholarship funds for religious study, the State of Washington asked the Supreme Court to review the case. The case is now under consideration.

The question boils down to whether Washington’s Constitution is so restrictive that it violates the US Constitution’s free exercise clause of the First Amendment. Case law is clear. If state law is more restrictive of individual liberties than US Constitution, state law must yield.

The previous jurisprudence of the Supreme Court suggests that any law that makes any classification based on religion must pass strict scrutiny. In Rosenberger v. University of Virginia, the Court found that the University of Virginia could not deny funds to a student religious group when it granted funds to other student groups. Indeed, treating religious groups differently in this case was tantamount to stigmatizing religion, when government’s role should be one of neutrality. The Court concluded that no reasonable person could conclude that the funding of the student led group constituted an endorsement. Will they draw a similar conclusion in the Locke v. Davey case?

The case if full of ironies. The American Civil Liberties Union (ACLU), which usually beats its chest about the necessity of tolerance for minorities, in its amicus curie brief before the Court is siding with the State of Washington and the Blaine Amendment originally motivated by intolerance of Catholics. It suggests that the ACLU position is more reflexively anti-religious than based on a principled understanding of the First Amendment. On the other hand, Conservatives who are usually sympathetic to state autonomy are seeking to use the Federal Courts to override state action. It sometimes seems that the arguments about state versus federal rights is based less on a thoughtful theory of federalism, on more on whether the state or federal government happens to be on the favored side the issue.

Not surprisingly, Court handicappers believe the case might hinge on the vote of Sandra Day O’Connor.

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