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A "Relatively Minor" Burden

What is the government's proper relationship to religion? In Locke vs. Davey, the Supreme Court explains why a public scholarship can't fund a theology education.

11:00 PM, Mar 3, 2004 • By TERRY EASTLAND
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The Supreme Court has taken another crack at explaining the government's proper relationship to religion. Unfortunately, last week's ruling in Locke vs. Davey, while it may seem limited just to the facts of a difficult case, could lead to substantial discrimination against religion.

The defendant in the case was the state of Washington, which, like all states, is bound by the U.S. Constitution as well as its own. Under the U.S. Constitution, government may not establish religion or prohibit its free exercise. But Washington's own constitution has a provision on religion not found in the federal Constitution, for it prohibits the state from even indirectly funding religious instruction.

That restriction came into play five years ago when the Washington legislature created a scholarship program designed to help high-achieving students from low-income families pay their college expenses.

To qualify for a Promise Scholarship, which may be used at any accredited school in the state, public or private, a student must meet certain academic and income requirements. But, consistent with the state constitutional ban on funding religious instruction, the program also requires that no Promise Scholar may pursue a degree in theology that's "devotional in nature or designed to induce religious faith." Devotional theology happens to be the only field of study denied to a Promise Scholar.

Enter Joshua Davey. Qualifying for a Promise Scholarship in the first year of the program's operation, he matriculated at Northwest College, a duly accredited school affiliated with the Assemblies of God. Planning to become a church pastor, he decided to co-major in "pastoral ministries." Advised by the college that pursing a degree in that subject would violate the terms of his scholarship (worth $1,125), Davey refused to opt for a different co-major and gave up his scholarship. He sued, arguing that the state, by treating theology differently from all other majors, had unconstitutionally burdened his federal right to the free exercise of religion.

In an opinion written by Chief Justice William Rehnquist, the Supreme Court sided with the state of Washington. The chief justice said the federal Constitution binds government in a looser fashion than the Washington constitution does. He pointed out that, consistent with the court's decisions on "establishing religion," Washington could allow Promise Scholars to major in devotional theology. In other words, it could treat theology majors the same way it treats all other majors--precisely what Davey was asking for. But, the chief justice went on, the state has chosen not to pay for the religious education of future ministers. And it is free to do that--to "draw a more stringent line than that drawn by the U.S. Constitution."

The majority opinion is defensible--but only to a point. What makes the ruling hard to accept is that in past cases the court has said that when government makes a public benefit generally available, it can't withhold the benefit from some individuals solely on the basis of religion but must treat everyone equally. Had the court stuck to that principle, it would have ruled for Davey.

The court described the burden imposed on Davey as "relatively minor" and declined to "venture further into this difficult area." But the court might be forced to venture further; what if Washington now decides to prohibit Promise Scholars who aren't theology majors from taking theology courses? Or if it decides to prohibit Promise Scholars from even attending a religiously affiliated school like Northwest?

And what if other states decide to craft scholarship policies based on "less stringent" line-drawing that treats religion differently? Or if--to consider another area of policy--states begin to exclude otherwise qualified religious charities from competing for social service grants?

When would the burden on free exercise rights cease to be so minor? When would the court feel compelled to enforce the First Amendment principle of neutrality and equal treatment?

Joshua Davey isn't on track to be a church pastor. He's in his first year at the Harvard Law School. Maybe someday Counselor Davey will find himself in the Supreme Court, arguing against efforts to extend the logic of Locke vs. Davey.

Terry Eastland is publisher of The Weekly Standard. This column originally appeared in the Dallas Morning News.