Should a Student Who Wants a Theology Degree Be Eligible for a State Scholarship? NO

The Supreme Court is presently considering a case, Locke V. Davey, that raises questions about the history of American bigotry toward Catholics. Joshua Davey, a student in Washington State, sued when he was denied a scholarship to fund his theology degree. Washington denied the scholarship on the grounds that the state constitution forbids the mixing of church and state. When the case went to the ninth circuit court of appeals, the state lost.

Like dozens of other states, Washington's constitution includes a provision required by Congress as the price of admission to the union that forbids the use of public funds for sectarian purposes. The provision was modeled after an amendment to the Constitution sponsored by Senator James G. Blaine, a Republican candidate for president in the late nineteenth century.

Below is an excerpt from the brief filed in the case by Washington State. Click here for the brief filed on behalf of Davey.

In the opening brief we explained that this case is governed by the principle that the legislative decision not to subsidize the exercise of a fundamental right does not infringe that right. Pet’r Br. 22-25. Davey’s amici argue that this principle is limited to government speech and practices, like abortion, that the government may choose to discourage.7 This Court has put no such limit on the funding principle. Rather, this principle encompasses a wide range of policy objectives, including policies that address the appropriate source of funds for activities that are not themselves disfavored....

This argument also assumes that the Washington Constitution is hostile toward religion. There is no basis for this assumption. Article I, section 11 traces back to the Virginia Bill of Religious Freedom. Supra p. 3. In fact, the guarantee of religious freedom embodied in article I, section 11 “extends broader protecttion than the first amendment of the federal constitution”. ...

Davey and his amici argue that article I, section 11 is hostile to religion because they claim it arose out of anti-Catholic bigotry related to the Blaine Amendment. Resp’t Br. 20 n.8.8 Whatever anti-Catholic prejudice may have existed in other states, that is not the constitutional history in Washington. Nothing in the history of the adoption of article I, section 11 suggests that it was the product of anti-Catholic prejudice.9 Moreover, the suggestion by some amici that the purpose of the constitution was to permit Protestant worship in public schools while denying the same funding to “sectarian” schools is false.

In 1891, two years after the constitution was adopted, the Washington Attorney General interpreted article I, section 11 to prohibit all Bible reading and religious exercise in public schools. According to the Attorney General, the terms “religion” and “religious” as used in article I, section 11 “apply to all forms of religion and religious worship and belief ”. 1 Op. Att’y Gen. 142, 145 (1891). In particular, the Attorney General concluded that the King James version of the Bible could not be read in public schools because it was “a sectarian book”. Id. at 150. In 1918, the Washington Supreme Court cited this opinion with approval when it ruled that article I, section 11 prohibited all Bible study—including Protestant, Catholic, or Jewish Bibles—in the public schools. Washington ex rel. Dearle v. Frazier, 102 Wash. 369, 173 P. 35 (1918). Thus, there is no basis for the claim that article I, section 11 was an anti-Catholic ruse to preserve the Protestant religion in the public schools....

Davey and his amici argue that the scholarship discriminates against religion on its face and is, therefore, subject to strict scrutiny. They make essentially two arguments. First, they seem to argue that any law that refers to religion is facially discriminatory.12 Here, article I, section 11 provides: “No public money or property shall be appropriated for or applied to any religious worship, exercise or instruction, or the support of any religious establishment[.]”...

This mechanistic approach, applying strict scrutiny whenever a law refers to religion, completely bypasses the central question—whether the object or purpose of the law is to suppress religious beliefs or practices. But ascertaining whether this object or purpose is present is the very reason for examining the text of the law....

Indeed, applying strict scrutiny in the automatic fashion suggested by Davey would disregard the historic role of the states in preserving freedom of conscience in matters of religion. If state laws that make distinctions based on religion were automatically catapulted into strict scrutiny, the state law context and broader approach would never be given consideration. But this broader context deserves consideration. The Religion Clauses of the First Amendment did not apply to the states until 1940. Cantwell v. Connecticut, 310 U.S. 296 (1940). Prior to that time, state constitutions provided the only protection for religious liberty at the state level. Thus, in Dearle, 102 Wash. 369, 173 P. 35, the Washington Supreme Court applied article I, section 11 to prohibit Bible reading in public schools 45 years before this Court applied the Establishment Clause to prohibit the same practice.