Exercise v. Establishment.

The Supreme Court heard argument yesterday in Locke v. Davey, a case in which the U. S. Court of Appeals for the Ninth Circuit (on which I clerked lo these many years ago) held that Washington State ran afoul of the First Amendment by withdrawing a state merit scholarship from a student after he declared a major in theology.

According to the Ninth Circuit opinion, Davey qualified for the state scholarship (known in Washington as a "Promise Scholarship") based on several factors, including his grades and his family income. Davey enrolled at a religious-affiliated college and declared a double major in Pastoral Ministries and Business Administration. The state then rescinded his scholarship. After an extensive discussion of the Supreme Court's religious-freedom jurisprudence, The Ninth Circuit found that by restricting scholarship recipients from majoring in theology, Washington impermissibly burdens students' free exercise of religion. The state successfully petitioned the U.S. Supreme Court for review; hence yesterday's oral argument.

My law school classmate and Supreme Court reporter extraordinaire, Dahlia Lithwick, provides on Slate.com an informative and entertaining take on yesterday's Supreme Court argument. Dahlia's analysis, as well as those of other Court-watchers, suggests that the Supremes once again will reverse the Ninth Circuit. I find the Justices' hostility to Davey's case somewhat surprising, given that the Court just last term upheld Cleveland's school voucher program against a First Amendment challenge, despite evidence that an overwhelming majority of the voucher funds was going to Catholic schools. (Incidentally, a state-court judge today invalidated Colorado's voucher program. And for the record, I staunchly oppose vouchers.)

The Anti-Defamation League, an organization to which I devote hundreds of hours of volunteer time each year and through which I work actively to protect religious freedom, filed an amicus curiae brief in support of the State of Washington. The ADL argued that the Ninth Circuit's decision goes far beyond existing Free Exercise Clause jurisprudence and that Davey suffered no harm by losing his scholarship through his choice of major. I'm surprised to find myself parting ways with the ADL on this issue.

I recognize that Davey has become the poster-child for the religious conservatives against whose efforts to erode the wall between church and state I constantly battle. But the more I think about it, the more I believe that Washington's denial of scholarship funds to Davey because of his chosen course of study does impermissibly burden his religious free exercise, while doing little to protect against state-sponsored religion. Washington decided to provide scholarship funds to students deemed worthy based on their grades and financial circumstances. While those students' ability to attend college in the first place might be affected by the availability of scholarship funds, their choice of major likely is not. Presumably, the state could restrict recipients' use of the funds only to state-run institutions, or only to colleges and universities located in Washington State, or only to secular institutions. Yet even if such strictures exist, the state's involvement effectively ends when the student is selected to receive the scholarship and matriculates at an approved school. A student's subsequent decision to major in a religion program that satisfies the approved school's academic requirements does not result in state-sponsored religious education. If it did, then there seems a fair argument that the school would have to eliminate all of its religion programs in order to receive state scholarship (or other) funds in the first place.

Thus, as long as the religious-affiliated college Davey chose to attend is a permissible place for him to use his scholarship money (an issue that veers closer to the voucher problem), then he should be allowed to major in whatever he chooses at that college. To deny scholarship funds only to students who want to study theology is to discriminate against religion. And, as was pointed out during the Supreme Court argument, if the state can do that, it also can withhold scholarship money from students who choose to study a particular religion, such as Judaism, Islam, Catholicism, Wicca, or whatever else the state decides to single out for discrimination. Despite ADL's (and Washington's) arguments to the contrary, I think the Ninth Circuit got it right.

In a pluralistic society, students should be free to study whatever they choose within an approved educational institution, including religion (or atheism, for that matter). They should not have to forego religious studies -- or careers as priests, ministers, rabbis, imams, or leaders of some other denomination -- in order to receive state scholarship funds for which they otherwise qualify.