Posted 12:01pm March 6

by Melissa Kronfeld
U-WIRE Washington Bureau

On Feb. 25, the United States Supreme Court ruled in a 7-2 decision, to allow states to decide whether or not they will fund public scholarships for students pursuing a religious education. The ruling follows the legislative path enacted in over thirty other states. The Supreme Court ruling overturned a prior decision rendered by the notoriously liberal Ninth Circuit of Appeals in San Francisco.

The case, Locke v. Davey, originated in Washington State when a high school graduate, Joshua Davey, applied for the state’s “Promise Scholarship.” The program, initiated in 1999, uses state taxes to fund scholarship programs. When Davey applied to the religiously-oriented Northwest College to pursue a career as a minister, the scholarship was revoked. Davey filed suit in a Federal Court in 2002 on the grounds that the state was instituting an anti-religious and discriminatory exclusionary policy.

The guidelines for the “Promise Scholarship” allow for students to pursue religion majors, but the money may not be used to pay for a theology education when it is taught from a religious perspective, meaning that the student/teacher believe in what is being taught as their own personal conviction.

The highest court of the land disagreed with Davey, who had received the support and backing of the Bush administration on this sensitive issue. Chief Justice William Rehnquist, and Justices John Paul Stevens, Sandra Day O’Conner, Anthony M. Kennedy, David H Sater, Ruth Bader Ginsburg and Stephan G. Breyer constituted the seven majority votes.

Looking back at a two hundred year history of prohibiting the use of taxes to support the ministry, Rehnquist delivered the prevailing opinion of the court. In the statement, the Chief Justice stated that the program “imposes neither criminal nor civil sanctions on any type of religious service or rite. It does not deny to ministers the right to participate in the political affairs of the community. And it does not require students to choose between their religious beliefs and receiving a government benefit.” The decision, Rehnquist said, allows for “The state [to choose] not to fund a distinct category of instruction.”

The dissenting opinion, held by Chief Justices Antonin Scalia and Clarence Thomas, was delivered by Scalia, and viciously attacked the courts decision. “Let there be no doubt: This case is about discrimination against a religious minority. In an era when the court is so quick to come to the aid of other disfavored groups, its indifference in this case, which involves a form of discrimination to which the Constitution actually speaks, is exceptional. The indignity of being singled out for special burdens on the basis of one’s calling is so profound that the concrete harm produced can never be dismissed as insubstantial.”

The American Center for Law and Justice, founded by Evangelist broadcaster Pat Robertson, lent their legal expertise to Davey for the case. Jay Sekulow, the ACLJ’s Chief Counsel, who delivered Davey’s oral defense to the Supreme Court, was saddened by the decision.

“We are very disappointed with a decision that clearly sanctions religious discrimination. It is troubling that the decision is irreconcilable with more than a half century of Supreme Court precedent regarding the free exercise of religion,” she said. “In this case, Josh Davey simply wanted to be treated equally on the same terms and conditions as other scholarship recipients. The decision does not prohibit states from structuring scholarship programs to permit the pursuit of a degree in devotional theology. The Supreme Court, however, missed an important opportunity to protect the constitutional rights of all students.”

Other groups applauded the ruling. “We are very pleased by the Court’s decision,” said Ralph G. Neas, president of People for the American Way Foundation. “No state should be compelled by the federal government to fund religious instruction. Today, the Supreme Court reaffirmed this principle and in the process, strengthened the foundation of religious liberty.”