Justices Bar Public Aid to Study Religion

WASHINGTON —  The Supreme Court ruled Wednesday that college students who are preparing for the ministry do not have a right to state scholarship aid on the same basis as other students.

The 7-2 decision, written by Chief Justice William H. Rehnquist, rejected the notion that divinity students are entitled to equal treatment when it comes to receiving state money.

Instead, the court upheld the principle of separation of church and state -- a key feature of the state constitutions in California and 36 other states -- and held that the interest of the states outweighed the claim of religious discrimination.

In this case, the court ruled against a college student whose Washington state scholarship was rescinded when he announced his area of study. The Bush administration had sided with the student in the case, as had the U.S. 9th Circuit Court of Appeals.

But faced with choosing between states’ rights and religious protections, Rehnquist and six other justices came down on the side of the states.

Had they ruled the other way, it could have been a significant boost to the case being made by the administration for school vouchers, which would allow public education funds to be spent at religious schools, and so-called faith-based social service programs, which would funnel federal funds to religious groups.

Indeed, the decision could bolster the case being made in other courts that state funds should not go to religious schools. In Florida, for example, Gov. Jeb Bush has supported vouchers for students in some failing schools, but state judges have ruled the public money may not flow to church-related schools under the terms of the state Constitution.

In its decision Wednesday, the Supreme Court drew a crucial distinction between what the U.S. Constitution permits and what it requires when the issue is taxpayer funding of religion. The 1st Amendment says the government “shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof” -- two clauses that “are frequently in tension,” Rehnquist noted.

In recent years, the high court has retreated from the principle of strict separation of church and state in the area of school funding. Led by Rehnquist, the justices have given states more leeway to fund church schools if they choose to do so.

Two years ago, for example, the justices upheld Ohio’s policy of giving vouchers, or tuition stipends, to low-income parents who could use the money to send their children to religious-affiliated schools.

This tax aid flowing to church schools did not violate the 1st Amendment’s ban on an “establishment of religion” because it depends on the parents’ private choices, Rehnquist said then for a 5-4 majority.

The new case represented the flipside of the coin. The college student, Joshua Davey, maintained that, under the guarantee of “free exercise of religion,” he was entitled to a state-funded scholarship to study theology -- even if the state refused him the money.

In 1999, the Washington Legislature created Promise Scholarships for top high school graduates whose families would have difficulty paying for college. The recipients were free to use the aid at any accredited college, including religious-affiliated schools. However, the state said it would not pay for students to study theology and to prepare for the ministry.

Davey was awarded $1,125 and enrolled at Northwest College, a private school affiliated with the Assemblies of God. But when he announced that he planned to major in theology and prepare to be a pastor, state officials revoked the scholarship.

Washington’s Constitution includes a strict ban on using tax money to support religion. “Absolute freedom of conscience in all matters of religious sentiment, belief and worship, shall be guaranteed,” it says. However, it continues, “No public money or propriety shall be

The constitutions of 36 other states, including California, have a similar provision.

After losing the state money, Davey sued in federal court, contending the state’s action discriminated against him because of his religion and violated the 1st Amendment. He won a 2-1 victory in the 9th Circuit Court of Appeals, which ruled that a state cannot single out religion for a special exclusion when providing open-ended grants.

State officials feared they would be required to send money to church-related programs whenever they paid for any activity, whether it was drug treatment, school busing, school textbooks or higher education aid.

But the Supreme Court took up the state’s appeal on behalf of Gov. Gary Locke and overruled the 9th Circuit’s decision.

The state is not preventing Davey from studying theology, but is simply refusing to subsidize his education, Rehnquist said. Nor is the state excluding religious colleges entirely from its scholarship program. Davey could have received state aid had he majored in business, rather than prepared for the ministry, the chief justice stressed.

“Training someone to lead a congregation is essentially a religious endeavor,” Rehnquist wrote in Locke vs. Davey. “Given the historic and substantial state interest at issue, we cannot conclude that the denial of funding for vocational religious instruction alone is inherently constitutionally suspect.”

While Rehnquist and Justices Sandra Day O’Connor and Anthony M. Kennedy have voted to permit some funding of religious schools, they also support states’ rights and are wary of dictating how the states spend public money.

Only Justices Antonin Scalia and Clarence Thomas dissented. The state “discriminates against religion” when it refuses to pay for the study of theology, Scalia said.

“This is a huge defeat for those who want to force taxpayers to pay for religious schooling and other ministries,” said the Rev. Barry Lynn, executive director of Americans United for Separation of Church and State. Jay Sekulow, Davey’s lawyer and counsel for the American Center for Law and Justice, which advocates for religious rights, said the ruling “clearly sanctions religious discrimination.”

After finishing college in Washington, Davey set aside his plan to become a pastor and enrolled at Harvard Law School, where he has joined in class discussions of his case.