Theology Scholarship Ban Upheld

[Darth Buddha]

Even as a Non-Theist, this bothers me...

Should a State Sponsored Scholarship be withdrawn on the basis of a (theology) major? How about only if that major happens to be Theology?

I'm as separation of church and state as you can get, and this just seems Un-American. I feel this borders on offending on the government not regulating religion, or providing support differentially on the basis of religion.

Where do you stand?

Theology Scholarship Ban Upheld
WASHINGTON, Feb. 25, 2004
Scholarship-God Dispute
(AP) The Supreme Court, in a new rendering on separation of church and state, voted Wednesday to let states withhold scholarships from students studying theology.

The court's 7-2 ruling held that the state of Washington was within its rights to deny a taxpayer-funded scholarship to a college student who was studying to be a minister. That holding applies even when money is available to students studying anything else.

"Training someone to lead a congregation is an essentially religious endeavor," Chief Justice William H. Rehnquist wrote for the court majority. "Indeed, majoring in devotional theology is akin to a religious calling as well as an academic pursuit."

The case is a departure from recent church-state fights in which the Supreme Court has gradually allowed greater state sponsorship of religious activities. Rehnquist is usually a supporter of that idea.

Wednesday's case has implications for President Bush's plan to allow more church-based organizations to compete for government money, and the Bush administration argued that the state had been wrong to yank the scholarship from former student Joshua Davey.

Davey won a state Promise Scholarship, but the state rescinded the money when it learned what he planned to study.

Like 36 other states, Washington prohibits spending public funds on this kind of religious education. Bans on public funds for religious education, often known as Blaine amendments, date to the 19th century, when anti-Catholic sentiment ran high.

"It imposes neither criminal nor civil sanctions on any type of religious service or rite," the high court majority said.

"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 state has merely chosen not to fund a distinct category of instruction."

Justices Antonin Scalia and Clarence Thomas dissented.

"Let there be no doubt: This case is about discrimination against a religious minority," Scalia wrote for the two.

"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."

Scalia said the court's majority was trying to play down the damage to Davey, who continued his education without the subsidy. He did not choose to enter the ministry after graduation, and is now in law school.

"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," wrote Scalia, the father of a Catholic priest.

Davey's lawyers argued that the state violated his constitutional right to worship freely.

A broad ruling that Davey had a constitutional right to the scholarship money could have forced a vast reordering of government spending, to ensure that government did not exclude religious programs or organizations.

The Bush administration had argued that the implications were less dramatic.

The Davey case is a follow-up to the court's major ruling two years ago that allowed parents to use public tax money to send their children to religious schools. A ruling in Davey's favor would have made it easier to use vouchers in many states, because it could overturn provisions in state constitutions like the one at issue in Washington.

The Davey case was in many ways the flip side of the voucher argument. It asked not whether governments can use tax money to underwrite religious education, as the voucher question did. Instead, the Davey case asked whether, when money is available, it must be available for religious and secular studies alike.

"This ruling is a huge defeat for those who want to force taxpayers to pay for religious schooling and other ministries," said the Rev. Barry W. Lynn, executive director of Americans United for Separation of Church and State.

"This erects an important barrier to efforts to fund school vouchers and faith-based programs."

The case is Locke v. Davey, 02-1315.

I hope we can all play nice on this one.

[grinner]

I don't think that this was a good decision. But then again... the majority of Seminaries are Private Institutions.

[NYPinTA]

No, I don't think it was a good decision either.
It is especially not right since he won the scholarship first, which means he was eligible for it and then because of his chosen course of study they took it away.

Don't some colleges have courses on theology? What if someone won a scholorship at a college and took a theology course... would they have to pay for that course seperately?

[stellar]

I'd suggest reading the decision before voting. If for no other reason than to take heart that this type of information is freely available to us (www.supremecourtus.gov).

The school that the man went to is a private school affiliated with the Assembly of God church, but that institution is eligible for the scholarship. The creation of the scholarship (and I know less about the particulars of the scholarship than I'd like) specifies that, in accordance with the State Consititution, students cannot use the scholarship to pursue a devotional theology degree. The state awards the scholarship and then afterwards checks that the student is going to school full time and that the student isn't pursuing a devotional theology degree both of which violate the legistlation.

This is about the right of the State to issue rules in accordance with its scholarships and constitution. The state has the right to issue rules as long as those rules are constitutional. Davey argued that it violated the protection of establishment. But the rules weren't made up afterwards, they were stipulated in legistlation. The state isn't saying that Mr. Davey can't pursue a theology degree - that would be unconstitutional. The state said that if he pursues a theology degree they won't pay for it. That's not unconstitutional.

[BlackThorn]

Edited: Thanks for that, stellar.

[Digger]

Quite the conundrum DB. On the surface it does seem to be a bad decision, particularly in light of the fact that he chose his major after winning the scholarship. I would imagine, however, that if he had signaled his intention to major in theology (not just include it in his studies, but MAJOR in it) he probably would have been excluded from eligibility for the scholarship in the first place, based on seperation of church and state. And also, this paragraph: A broad ruling that Davey had a constitutional right to the scholarship money could have forced a vast reordering of government spending, to ensure that government did not exclude religious programs or organizations. seems to me to be the most pertinent in the argument. Maybe I'm just getting more cynical as I get older, but I think a ruling the other way might have been all the ammunition some folks needed to try and push for state funding of other religious organizations. I think we all know that there are those in this country who would like to see state sanctioned and funded religion, but I am not one of them.

Still, I am torn on this case. I guess I'll just sit on the fence and see how others here respond.

[Darth Buddha]

If it is the right decision, then it is very close to the line in terms of separation of church & state. I can't really provide arguments to shoe it one way or another.

However, I think the precedent could open a Pandora's Box of unpleasantness.

At the very least, this far, and no further.

[stellar]

Not even a little further?

[Darth Buddha]

Only for the Shiznit himself....

and maybe The Demon Knight, were he so inclined.

[B Sharp]

Originally posted by Darth Buddha
If it is the right decision, then it is very close to the line in terms of separation of church & state. I can't really provide arguments to shoe it one way or another.

However, I think the precedent could open a Pandora's Box of unpleasantness.

At the very least, this far, and no further.

didn't stellar's post address this? if I understood it correctly, there was no intention to dissuade folks frmo pursuing their interest in theology, it's just that the state won't pay- which sounds like appropriate separation between church and state. I was worried initially, but the deity (heh heh) is in the details, as someone said.

[stellar]

That's a super-fantabulous avatar you've got there B Sharp.

[vhsiv]

As an agnostic, I can appreciate what SCOTUS (save Scalia) is trying to do, however, on the flip-side, it troubles me that the Gov't. has a hand, if not a word on what what people elect to major in, while in college.

That's not to say that any *smart* student wouldn't try to dodge the fine print by switching his or her major to 'Comparative Literature', 'Latin Studies' or 'Romance Languages' to get around said restrictions.

The flip-side is that there might be future in which SCOTUS rules more broadly about what people *can't* study while in college, based on this precedent - that certain 'sectarian' classes would be 'off-limits' if you're not a concentrator, or if you are dependent upon Federal funds to pay a portion of your tuition-ticket.

[stellar]

It was Scalia and Thomas dissenting.

The government didn't say that this kid couldn't major in devotional theology, they said they wouldn't pay for it if he did because the government can't use tax dollars in that way.

I'm not sure, but I immagine he could have majored in theology as a historian, but he was studying to be a minister. The State cannot pay for someone to become a minister.

[NYPinTA]

Originally posted by stellar
That's a super-fantabulous avatar you've got there B Sharp.

Ditto. I was watching it for a bit and actually experienced lost time... :eh: :D

Originally posted by stellar
I'd suggest reading the decision before voting. If for no other reason than to take heart that this type of information is freely available to us (www.supremecourtus.gov).


Is it too late to change my vote? No? ...Frell.

[fermicat]

I am troubled by this decision, because a college degree is sometimes just a ticket that opens certain doors for you, regardless of what your major was. A lot of people end up working in fields far from what they studied, even though just having some sort of bachelor's degree might be a basic requirement. This kid might not end up being a preacher. He could end up doing social work, or running a small business, or being a counselor. And someone else who has studied something secular could turn around and use his or her education in an entirely religious oriented career. Given this, I think the restriction against funding this education due to the nature of major is a poor choice.

[Jul]

A lot of people end up working in fields far from what they studied, even though just having some sort of bachelor's degree might be a basic requirement. This kid might not end up being a preacher. Well, I think in this situation, that perhaps, the end result of this degree is that this student would be a preacher. As a catholic, I know that when priests go to the seminary, they are priests when they graduate. A state institution paying for somebody to become a preacher or priest may be seen as the equivalent of establishing a religion, which is a violation of the separation of church and state. It seems that if the student had had a different type of theology degree, he would have been eligible for the public scholarship.

[stellar]

A poor choice? But not an unconstitutional one.

If the Washington legistlature didn't preclude devotional theology, and the scholarship would have been challenged on the grounds that the State of Washington was endorsing religion by appropriating monies to the supplement of religious studies then the entirety of the legistlation would be thrown out and nobody gets a scholarship.

[grinner]

Originally posted by stellar


I'm not sure, but I immagine he could have majored in theology as a historian, but he was studying to be a minister. The State cannot pay for someone to become a minister. that must be something that is a recent Occurance... cause I know someone that received a State Scholarship who used it to attend a Seminary. Heck... quite a few people that I know used Government Scholarships that way.

[stellar]

Well tell them to be quiet about it.

[B Sharp]

Originally posted by stellar
That's a super-fantabulous avatar you've got there B Sharp.

yes, it's yet another super-duper Kyca Raw
creation. I'm only the snurcher.

[Antrobus]

The State cannot pay for someone to become a minister.

That's it in a nutshell! They ruled correctly (IMO).

[AgentSun]

i can see how it looks like a bad decision at first, mostly cause it is stomping on the rights of this student. but he should have known that the scholarship does not endorse theology majors. it doesn't mean he can't be a theology minor or take theology courses (cause here you have to take a theology course. i'm taking it right now, it's a killer). and the fact is, the state does not want to endorse a student who is choosing to pursue a theology major. it has nothing to do with them not liking the student or the major, it is exactlly like steller said, the state does not want to pay for someone to be a minister.

honestly, if youre going to go to seminary or be a pastoral studies major, there are a lot of christian (or whatever religion) scholarships out there. the government is not the only way to get money for education.

[BillFrugge]

Much as I hate to say it, I'd have to say they got it right.

Seperation argument aside, he did violate the rules for using the scholarship. He effectively forfeited the scholarship.

I think it's sad, though, that these rules do not allow him to use the scholarship money to pursue a career in ministry. After all, my school did not make any stipulations on what careers I couldn't choose. He is basically discriminated against on the grounds of religion.

I'm reminded of George Costanza: "Was that wrong? I wouldn't have done it if I'd none it was wrong."

[Third EYe]

rubbish

[LadyCrais]

Actually, the guy dropped out and is in law school, I believe it is. So becoming a minister is by no means a certain result of enrolling as a devotional theology major. Would the ruling be identical for someone obtaining a degree for a ministry in music?

The commentary I've heard on this case by the constitutional law folks have talked at great length on this ruling essentially eliminating state vouchers to attend church run schools. And apparently any number of other things that the administration has pushed in the way of giving money to the churches to do the social work it doesn't want to do. So I'm not entirely convinced by Stellar's simplistic explanation. While it is certainly true that nobody is prohibiting an individual from obtaining an education in a religious environment, it has apparently been deemed constitutional to descriminate on the basis of course of study in providing financial support for that study. Given the number of educated ministers who don't directly lead churches and the number of people who lead churches who have no theological training to speak of, I have a bit of trouble agreeing that that kind of sanctioned descrimination is valid.

[Darth Buddha]

I'm not sure if I am reading you right, but I draw a very distinct difference between denying SOME people a scholarship due to a religious major at a school where other majors are state subisidized in some for, and opposing governmental funding of SOME religions to perform civil functions.

The first policy seems like a separation of church and state for treating those witha religious major differently from other majors. The latter policy is plain and simple govermnet endorsement of some religious groups over others...

A Sword of Damocles to be sure, but when weilded wisely, I think it saves both religion and the stae.

[AgentSun]

so its basically...you treat them all with respect but if you don't care for them, don't discrminate either.

so wait, if the guy is in law school now, then is he still applicable for the scholarship?

and no one can just become a minister...i mean, in order to really lead or be a leader in a church, you have to know your stuff on an educational level. all my bible teachers have at least a masters and two of mine have one or more doctorates. one of my favorite professors is ed hindson. the man is hilarious and he's spent his life focused on theology. of course they are professors, but nowadays, most congregations expect their preachers to have at least a masters...

[Darth Buddha]

For me, it is more like religious freedom is inviolate. Policies that disproportionately target a group due to presence of religion is verboten.

However, policies to support, endorse, or introduce religious morality into legislation, court decisions, or Amendments to the Constitution should also be verboten.

I resent the hell out of religious groups who try to evangelize politics. But if they start suppressing religion, sign me up for the revolution!

[sny]

I've thought this over and thought this over, and I'm still not sure exactly where I come down. I mean, on the one hand, I certainly don't want to see the state funding, say, all religious training, or some religious training and not others. It's not outright preventing the student from "practicing their religion" in one sense, but on the other hand, there is a subtle message there that you can do anything you want with this money, except study to (potentially) become a minister. It could discourage some people considering that area of study.

There are other modes and methods for getting the money to study that particular area, of course, but it does seem slightly sinister to just yank the money if and only if one decides to study theology. As has been pointed out, there are a great many people with a theology degree who don't necessarily become ministers. And it does bring up the thorny issues of students who enter a college with an undeclared major, ones who might switch majors along the way, and potential dual majors (Could be done in 4 years on scholarship. I did it with Math and Computer Information Systems. I suppose someone could want a dual major, one of them being theology.) that the student might declare.

This particular case even, the student didn't end up earning that degree. Imagine the reverse, where a student declares an accounting major, then ends up getting a theological degree... would he owe the money back? There's no real comfortable answer here. Considering the legislation does specifically deny that major, though, I guess, being the "by the rules" kind of girl I am, I'd have to grudgingly agree. Even though the restriction itself and the subtle implications make me rather uncomfortable. I would hate to have been in on that decision. Don't think I could have decided.

"And what's your opinion, your honor?"

"Errr.... I pass! Skip me!"

[waltersgirl]

without having the parameters of the scholarship available to read, and, without knowing what school Davey intended to study theology at, i'd have to fall in with Justices Scalia and Thomas here.

the majority writes...
"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 state has merely chosen not to fund a distinct category of instruction."

actually, that's exactly what the decision does, and did. it forced Davey to choose between studying theology, a major offered in secular schools, without benefit of the scholarship, and studying something else. he was specifically forced to choose because of religion. that's discriminatory if the scholarship was a generally available fund.

again, i haven't seen the parameters of the Promise Scholarship. if it specifically precludes theological study, or specifically itemizes acceptable courses of study, then Davey's frelled. if it doesn't, one could successfully argue that SCOTUS's decision is in violation of the Establishment Clause. even if the scholarship does preclude theological study specifically, if the funds are those generally available, then i think you could argue that the state is in violation of the Establishment Clause with regards to the disbursement of funds.


on the other hand, and i think this is part of the problem, his attornies argued incorrectly.

Davey's lawyers argued that the state violated his constitutional right to worship freely.

HUGE mistake. the scholarship specifically, and the study or not of theology in general, has no bearing on his right or ability to worship freely. based on that kind of argument, i'd also rule against it.

A broad ruling that Davey had a constitutional right to the scholarship money could have forced a vast reordering of government spending, to ensure that government did not exclude religious programs or organizations.


messy.

i'm going to bring over Eugene Volokh's thoughts on this. he is a Constitutional Law professor at UCLA. please hold.

[waltersgirl]

on May 19th, he wrote...

May states discriminate against religious institutions or programs in their voucher-based aid plans?

Last year (in Zelman v. Simmons-Harris), the Supreme Court held that states don't have to exclude religious institutions and programs from generally available voucher plans -- for instance, a state may provide school vouchers to students who go to all private schools, whether religious or secular; such programs, the Court held, don't violate the Establishment Clause.

But what if states want to discriminatorily exclude religious institutions and programs from such generally available plans? The state of Washington, for instance, provides certain kinds of help to college students, but excludes students who are studying theology. Is this permissible? Or does such exclusion violate the Free Exercise Clause (by discriminating against religious practice), the Free Speech Clause (by discriminating against religious speech), the Establishment Clause (by showing hostility towards religion, inhibiting religion, or conveying a message of disapproval of religion), or the Equal Protection Clause (by discriminating based on religion)?

Lower courts have disagreed on this subject, and the Supreme Court has just agreed to consider the issue. The case in which the Court granted certiorari is the Washington state case, Davey v. Locke, where the Ninth Circuit held that excluding theology programs from the generally available voucher programs was unconstitutional. My tentative prediction: 5-4 to hold that states may not exclude religion from these programs, with Chief Justice Rehnquist and Justices O'Connor, Scalia, Kennedy, and Thomas on one side and Justices Stevens, Souter, Ginsburg, and Breyer on the other. (Of course, if one of the Justices retires, the lineup may change slightly, but I doubt that the result will).

Of course, there's much more at stake here than college-level theology education -- some state courts have interpreted their state constitutions as prohibiting school voucher programs that include religious schools among other schools, even though the Establishment Clause does not prohibit such programs. That's the real battleground here, and the Locke v. Davey case (in the Supreme Court, the parties' names will be reversed, since the party that challenged the lower court decision -- Washington state, represented by Governor Locke -- was the defendant below) will likely have a substantial effect on that battle.

Here's....my long post on the subject, also from last July:

EXCLUDING RELIGION:

Two months ago, in Zelman v. Simmons-Harris, the Supreme Court held that the federal Establishment Clause doesn't require that religious schools be excluded from even-handed school choice programs. But as Juan Non-Volokh points out [here] . . ., some court decisions -- including a decision just this morning [August 5, 2002] -- hold that state constitutional church-state provisions may require such exclusion. Are those state court decisions (and state legislative decisions to exclude religious schools from programs that are open to private secular schools) constitutionally permissible?

Generally, state courts and legislatures may interpret state constitutions in a more rights-protective way than the federal constitution. Many state courts have done this to various rights provisions in their state constitutions, such as those governing free speech, search and seizure, and right to bear arms. There's no inherent conflict between the federal constitution imposing various constraints on both the federal and state governments, and a state constitution imposing still more constraints on the state government. That's part of the virtues of our federal system -- a state's citizens may enact protections against their state government beyond what the federal constitution provides.

But a state may not secure supposed constitutional rights that themselves violate the rights of others. For instance, a state constitution cannot provide more protection of the right to free speech by giving one race extra speech rights beyond what another race has -- this might not violate the federal Free Speech Clause (since it gives more protection than the federal clause offers), but it does violate the Equal Protection Clause, which generally prohibits states from treating people differently based on race.

That's why I think that state constitutional provisions (and state statutory provisions) that require the exclusion of religious schools from evenhanded choice programs do violate the federal constitution. It's not that there's anything wrong in principle with state citizens having extra protection against their state legislature -- but this "protection" cannot take forms that are themselves unconstitutionally discriminatory.

Four constitutional provisions are potentially relevant here, and if exclusion of religious schools violates any one of them, then it’s unconstitutional.

1. The Free Exercise Clause bars the government from “prohibiting the free exercise [of religion].” The Court has treated this as an antidiscrimination rule, under which the government may not “impose special disabilities on the basis of religious views or religious status.” For example, the Court has held that even if a city may ban killing of some animals, it can’t ban only religious killing.

The strongest response is that the Free Exercise Clause bars only discriminatory “prohibit[ions],” and excluding religious schools from a school choice program isn’t the same as prohibiting them outright. But a Court plurality has suggested that the antidiscrimination rule requires equal access to benefits as well as equal freedom from prohibitions.

2. The Free Speech Clause bars the government from “abridging the freedom of speech”; and selectively excluding certain sets of views from broad funding programs, the Court has held, is an unconstitutional abridgement. If a funding program is open to all speakers meeting certain objective criteria -- for instance, if a public university funds a wide range of student newspapers -- the program
can’t then exclude religious speakers.

The strongest response is that funding student private educations isn’t really analogous to funding student newspapers, because it’s vastly more expensive. When that much money is being given out, the counterargument would go, the government should have more flexibility to choose which views it wants to subsidize. It’s hard to tell exactly how the Court would resolve this.

3. The Establishment Clause says the government shall “make no law respecting an establishment of religion,” and the Court has repeatedly said that this bars the government from “advancing or inhibiting religion,” from “endors[ing] or disapprov[ing] of religion, or from showing favoritism or “hostil[ity] to religion”:“The First Amendment mandates governmental neutrality . . . between religion and nonreligion.” Just as discriminating in favor of religion is impermissible advancement, endorsement, and favoritism, so excluding religion would be impermissible inhibition, disapproval, or hostility.

The Supreme Court has never struck down a program on these particular grounds, so courts might conclude that these quotes are just “dictum” -- offhanded remarks that weren’t really fully considered by the Court. But they’ve been repeated often enough (in dozens of cases) that the Justices seem to have been serious about them.

4. The Equal Protection Clause bars states from “deny[ing] to any person . . . the equal protection of the laws.” The Court has interpreted this as barring both race discrimination and religious discrimination. It’s not clear, though, whether this would bar discrimination against all religious institutions, or only discrimination among religions. (“Person” in the Equal Protection Clause includes corporations.)

Lower courts are split on the subject; in an article I wrote a few years ago, I cite various cases that strike down discriminatory exclusion of religion, and various cases that uphold it. For a good example of a very recent Ninth Circuit case that strikes down such a discriminatory exclusion, see Davey v. Locke; for an example of a Ninth Circuit case that upholds such a discriminatory exclusion, see K.D.M. v. Reedsport School District.

My bottom line: If the government sets up a school choice program that's open to private secular schools, then I think it's unconstitutional for it to exclude private religious schools based on their religiosity. I'm not sure whether courts will ultimately rule that way, but I think that there are good precedential and normative reasons for them to do so. (Note that this doesn't make it unconstitutional for the government to fund only government-run schools -- there, the classification is based on whether the school is run by the government, not based on whether it's run by a private religious entity or a private secular secular entity.)

[Twich]

I think that if the government is going to help pay for higher education amongst people, then the government should do it across the board. Not dependent upon what they study. It should be a "we want to help higher education" rather than "we want to help higher education amongst everyone except students studying certain subjects."

It *is* (IMO) descrimination and it is wrong. The government is telling people that it will help pay for their education if it's the "right" education and THAT is not what this country has been built upon.

[waltersgirl]

and here's what he said yesterday in response to SCOTUS decision in Locke v Davey

Eugene Volokh, 2/25/2004 08:11:05 AM] (See posts that link to this one)
Discrimination against religion:

Just read the opinions in Locke v. Davey, which held that states may discriminate against religious programs in distributing generally available benefits, and I think Justice Scalia's dissent is far more persuasive than the Chief Justice's majority opinion. The one good thing I can say about the case is that the opinions are short enough that they'll be less trouble than usual to excerpt in my 2004 casebook supplement.

I might have more about this case later (or I might not), but in the meantime one simple point: If the state of Washington decided to give special benefits for students of devotional theology (a $3000 scholarship only to people who are studying materials that are "devotional in nature or designed to induce religious faith"), that would be a sure violation of the Establishment Clause, because it would be discrimination in favor of religion. But when the state does the exact opposite, by specially excluding such students from a generally applicable program -- when it discriminates against religion -- that's now (after Locke v. Davey) completely constitutional, even though the Establishment Clause itself has long been described as barring disapproval as well as endorsement of religion, inhibition as well as promotion of religion, hostility towards as well as favoritism towards religion.

The result, I think, genuinely is the discrimination against religion that people have complained about (sometimes wrongly, but here rightly) -- not just exclusion of either pro-religion or anti-religion messages from the government's own speech, but a regime where the government may discriminate against private religious institutions and programs, but may not discriminate in their favor. Now this is a wrong that is indeed worth amending the Constitution over.


he then says read Part E from an article he wrote here. (http://www1.law.ucla.edu/~volokh/equal.htm)

please hold for Part E.

[Twich]

Thank you WG. That puts it very succinctly.

[waltersgirl]

there are citations at the end of this that i do not include here...but you can read them if you follow the above link.


E. The Constitutional Mandate of Equal Treatment

If these arguments are correct, then equal treatment is at least constitutionally allowed. But I also believe equal treatment is constitutionally compelled: The government may not discriminate against people or institutions because of their religiosity. The government may choose to fund only government-run schools and not private ones, because such a distinction would be based on government control, not religiosity; but any choice programs that help secular private schools may not exclude religious ones.
To begin with, this view is supported by the Free Exercise Clause, under which, Employment Division v. Smith tells us, "The government may not . . . impose special disabilities on the basis of religious views or religious status."(46) "At a minimum, the protections of the Free Exercise Clause pertain if the law at issue discriminates against some or all religious beliefs or regulates or prohibits conduct because it is undertaken for religious reasons."(47)

The Court has usually said this when discussing prohibitions on conduct, but equality rules generally apply to government benefits as well as government prohibitions.(48) In fact, even in McDaniel v. Paty, where the Court dealt not with a ban on religious conduct but rather with eligibility for office, the Brennan/Marshall concurrence held that excluding ministers from office violated the Free Exercise Clause, because "government may not use religion as a basis of classification for the imposition of duties, penalties, privileges or benefits."(49)

Likewise, the Court's Free Speech Clause cases suggest the government may not discriminate against private religious teaching and in favor of private secular teaching, even when the discrimination involves distribution of benefits. Widmar v. Vincent held that the government may not deny college classrooms to religious meetings when it opens them to secular meetings.(50) Lamb's Chapel v. Center Moriches Union Free School District held the same as to K-12 classrooms.(51) Rosenberger v. Rector and Visitors of the University of Virginia held the same as to reimbursement of expenses for college newspapers.(52)

Religious speech is not some stepchild of constitutional law: It is fully protected by the Free Speech Clause, and once the government sets up a generally open subsidy program, it can't discriminate against religious speech in operating the program. And education is, of course, predominantly speech. Just as the Free Speech Clause would stop the government from banning religious schools,(53) so it prohibits a government that's willing to fund all other accredited secular schools from discriminating against religious schools because of the religiosity of the viewpoints they teach.

Even the Court's Establishment Clause cases suggest that the government may no more discriminate against religion than discriminate in its favor. Under all its leading Establishment Clause tests,(54) the Court has used the language of evenhandedness. Under the Lemon test, the government may not do things that have the primary effect of advancing or inhibiting religion.(55) Under the endorsement test, the government may not express endorsement or disapproval of religion.(56) In its earlier cases, the Court stressed that the government ought not show favoritism or hostility to religion.(57) These statements have largely been dicta, but the Court has repeated them so often that we must assume that it meant them (unless we conclude that it was just mouthing the language of evenhandedness to better sell its unpopular holdings). And if giving special benefits to religion is favoritism, advancement, and endorsement, then discriminating against religion is hostility, inhibition, and disapproval.(58)

Finally, the Court has often said that religious discrimination violates the Equal Protection Clause;(59) though it has generally said this about discrimination among religious sects, this principle should at least presumptively apply to discrimination between religious and nonreligious people and institutions. Whether a person, a message, or a curriculum is religious should be as irrelevant to a secular government as is the particular flavor of religion to which the person, message, or curriculum adheres.(60) (I disagree with the Court's statement in Corporation of Presiding Bishop v. Amos that such discrimination should only be subject to Establishment Clause scrutiny and not Equal Protection Clause scrutiny,(61) though I think the ultimate result in Amos may be justifiable on other grounds.)

There are certainly strains in the Court's jurisprudence -- including the holding in Sloan v. Lemon (1973)(62) -- that work against this argument, just as the strains I identify work in its favor. Moreover, it may be hard to imagine the Court jumping from the current regime, in which it isn't clear whether equal treatment of religion is even allowed, to one in which such equal treatment is required.(63)

But I think the core understanding of the clauses, as it has evolved through the totality of the Court's jurisprudence, supports my view. The Free Exercise Clause is generally and properly understood as barring discrimination against religion. The Free Speech Clause is generally and properly understood as barring discrimination against religious speech, a constraint that fits well into the general principle that free speech means no government discrimination based on viewpoint (or often even content). The Equal Protection Clause asserts that certain traits, including religion and, I believe, religiosity, should not be bases for governmental classifications. And the Establishment Clause, as I argue above, supports, and at the very least does not oppose, this understanding: Its core meaning is no special benefit for religion -- "establishing" something must necessarily mean treating it better than its rivals.


In fact, since 1995 three circuit courts of appeal have in some measure adopted an analysis much like this one, holding (at least in some government subsidy contexts) that the government may not discriminate against religious institutions. Columbia Union College v. Clarke held that excluding religious educational institutions from a generally available funding program presumptively violates the Free Speech Clause and possibly the Free Exercise and Equal Protection Clauses.(64) The court held that the presumption was rebutted because including religious institutions in the particular program -- a program that directly funded colleges, rather than a choice program that supported the decisions of students -- would have violated the Establishment Clause; but the court made clear that had inclusion of the religious schools been permissible under the Establishment Clause (as I argue inclusion of religious schools in school choice programs would be), it would have been mandatory under the Free Speech Clause.

Likewise, Peter v. Wedl held that excluding religious schools from participation in a generally available Individuals with Disabilities Education Act program "explicitly discriminated against children who attended private religious schools," and that such "[g]overnment discrimination based on religion violates the Free Exercise Clause of the First Amendment, the Free Speech Clause of the First Amendment, and the Equal Protection Clause of the Fourteenth Amendment."(65) Finally, Hartmann v. Stone struck down an Army regulation that excluded child care providers who "teach or promote religious doctrine" from a general program that let child care providers use government-owned housing on military bases. Such an exclusion, the court concluded, violated the Free Exercise Clause because it singled out religious practices for exclusion.(66)

But in any event, even if these courts are mistaken about the constitutional mandate of equality, surely the Constitution at least allows such equality. Religious people or institutions ought not be treated better than secular people or institutions. But nothing in the Constitution requires that they be treated worse.

emphases are mine

[BlackThorn]

Good stuff, waltersgirl. Thanks for posting it.

Pity "equal treatment" and "equal protection" don't apply to every class of citizen.

[waltersgirl]

so...to sum up my opinion. with all deference and thanks to Eugene and his vastly superior intellect.;)


edited to include quotes from stellar's earlier comments, and repair of disjointed cut/paste/brainnotworking issues.


a) if the Promise Scholarship specifically excluded religious study then Davey broke the scholarship's rules and the state was within its rights to revoke the funds. however, this is where the Blaine Amendment arguments come in i think. the state of Washington would be discriminatory in its non-disbursement of public funds based specifically upon religion.

b)if the Promise Scholarship didn't exclude religious study and Davey was planning to attend a secular school and major in theology then the state was wrong, Establishment Clause, and SCOTUS was also wrong, Establishment Clause.

c) if Davey was planning to go to a religious school on publically available funds then again i think the state was within its rights again to revoke the funding, but still in the wrong, as was SCOTUS, again due to the Establishment Clause.

This is about the right of the State to issue rules in accordance with its scholarships and constitution. The state has the right to issue rules as long as those rules are constitutional. Davey argued that it violated the protection of establishment. But the rules weren't made up afterwards, they were stipulated in legistlation. The state isn't saying that Mr. Davey can't pursue a theology degree - that would be unconstitutional. The state said that if he pursues a theology degree they won't pay for it. That's not unconstitutional.

the state of Washington is denying him the use of public funds and they are basing that denial solely on religious reasons. the school that he was planning to attend was a private school that was allowed to accept said public funds, but they had an exemption from theological study. that is specifically exclusionary based on religion.

and again, the case was argued badly by Davey's attornies. the state isn't denying him his right to worship, they are denying him his right to equal education through public funding, and they are basing said denial on religion, in, i believe, direct violation of the Establishment Clause.



you can read Eugene and the rest of the Volokh law clan writing about all things lawyerly at the Volokh Conspiracy. (http://volokh.com) it's a group blog.

you can read more about the case at law.com (http://www.law.com/jsp/article.jsp?id=1076428409700), and if you are a subscriber, i think you can read the whole case. there is a link next to the article.

[stellar]

U.S. Constitution
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Jefferson's letter to Danbury Baptist Assn. (1802)
Believing with you that religion is a matter which lies solely between man & his god, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, and not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should make no law respecting an establishment of religion, or prohibiting the free exercise thereof, thus building a wall of separation between church and state. [Congress thus inhibited from acts respecting religion, and the Executive authorised only to execute their acts, I have refrained from presenting even occasional performances of devotion presented indeed legally where an Executive is the legal head of a national church, but subject here, as religious exercises only to the voluntary regulations and discipline of each respective sect.] Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore to man all his natural rights, convinced he has no natural right in opposition to his social duties.

Both of these excerpts are taken by the Supreme Court as part of their canon. If the state puts up a "wall" between them and religion, and that wall does not prohibit the free excersize of religion then that act is not discrimination because it doesn't infringe upon the rights of the person who feels discrimination upon them.

[waltersgirl]

wishing it to be that simple doesn't make it so.

[stellar]

7/9 Supreme Court Justices made it so. I knew who the two were before I read it. Now either I have supernatural powers or the decision was so clear as to make predictable the politics of the dissenters.

I do not have supernatural powers.

[waltersgirl]

there are entire books written about later overturned Supreme Court decisions.

[stellar]

Until it's overturned, it is a Supreme Court Decision and not a "Supreme Court that will be later overturned".

[waltersgirl]

odd. it's not like you to be so strident.

Until it's overturned, it is a Supreme Court Decision and not a "Supreme Court that will be later overturned".

and the discussion here is whether people agree or disagree with the decision, not whether the decision exists or not.

my point in mentioning that there are whole books that exist about SCOTUS decisions later overturned was to point out that the Supreme Court makes mistakes. Locke v Davey may or may not be one of them. i happen to think it is. your comment regarding the vote being 7 - 2 does nothing to bolster the legitimacy of the opinion simply because 7 of the 9 Justices agreed. that just means that 7 of the 9 Justices agreed. majority doesn't make them right, it just makes them the majority.

as to your initial quote....you can't take a piece of the Constitution that suites you and use it in isolation, outside of the scope and breadth of the document. the Constitution is living. it is adaptive. you cannot take a section that works for you and use it absent court precedent and the Constitution's surrounding documents. if such were the case, there wouldn't be decisions like Brown v Board of Education and Plessy v Ferguson.

[stellar]

It certainly wasn't my intention to appear shrill, but to project your statement logically. Sorry for alarming you.

I'm no Lawyer (there's no way I could read the amount of information that they have to read). I'm an Engineer (equations are short and to the point - I'm 5'10" and tend to digress; I suppose I'm a dichotomy), but I digress... I approach everything (initially) logically and unless that logic is shown to be inadequate I'm fairly entrenched on a subject - in that I don't think I'm unique.

But Engineers don't make the law or interpret the legitimacy of it. So I'm just a guy talking. :)

[waltersgirl]

Sorry for alarming you.

i'm not the least bit alarmed. that style of posting isn't common from you on weighty matters, and i found it curious.

the Constitution is a document that has worked in this democratic experiment of a country precisely because it isn't entrenched.

[NYPinTA]

I think the decision to not give scholarships to people who are going to major in theology for the purpose of become a religous leader based on separation of church and state can be boiled down to economics really.
Does the state hire priests? (I am not asking to prove a point. I really don't know.) But I do know that the state hires engineers and secretaries, and teachers... etc. So, you give scholarships to improve the job pool.
And what would happen if they decided it was okay to give out scholarships for religious studies. How would you ensure the equality of that? Quotas? If you give a scholarship to one religion do you have to give one to all? Just the major ones... or all of them? And then what happens... do people who are more deserving scholastically get left out because they have to fill the quotas first?
It is a slippery slope and I am glad I don't have to make those kinds of decisions.
As stated before, the state isn't saying he can't study theology. Just that they won't pay for it.

Edit: I changed the word 'can't' to 'won't' in that last sentence.

[grinner]

Originally posted by NYPinTA
I think the decision to not give scholarships to people who are going to major in theology for the purpose of become a religous leader based on separation of church and state can be boiled down to economics really.
Does the state hire priests? yes they do. They are called Chaplains. I have a buddy that went thru Seminary and is now a Chaplain on the State of Michigan payroll.

[stellar]

The Supreme Court has ruled in favor of States supporting religious programs. This ruling stated that such support is not compulsory.

[NYPinTA]

Originally posted by grinner
yes they do. They are called Chaplains. I have a buddy that went thru Seminary and is now a Chaplain on the State of Michigan payroll.

Really? What does he do for the state?

Originally posted by stellar
The Supreme Court has ruled in favor of States supporting religious programs. This ruling stated that such support is not compulsory.

:eh: I'm confused. I'm not sure what you mean. My post above was speculation on what would happen if the state decided to support religious programs, not what I supposed would happen if the Supreme Court made them. Although the same questions would have to be answered if they did... right?

[grinner]

Originally posted by NYPinTA
Really? What does he do for the state?

in Corrections. He was a Military Chaplain for a while... and now works for the prison system.

[Twich]

Good point Grinner. Military Chaplains are paid with federal fundage. But they have chaplains of all religions too. (And Chaplain's aids.)

Here's another question. Do Jewish people (honest question) studying to be rabbis ever receive federal scholarships? Or someone from another faith?

[waltersgirl]

And what would happen if they decided it was okay to give out scholarships for religious studies. How would you ensure the equality of that? Quotas? If you give a scholarship to one religion do you have to give one to all? Just the major ones... or all of them? And then what happens... do people who are more deserving scholastically get left out because they have to fill the quotas first?

one could take out "religious studies" and "religion" in your questions and substitute them for any secular field of study and still ask the same questions. they would be valid questions, but those questions don't stop scholarships from being awarded.

it's funny actually, because if ya'll knew my beliefs about organized religions, i think you'd wonder why i'm so staunchly defending what i think was a bad decision on the Supreme Court's part.

it isn't about religion. that's the whole point. it's about equality under the law. and Locke v Davey isn't about government funding religious education in a broad sense. it's about a case in the state of Washington where theology was specifically excluded from the receipt of generally available funds. funds that are allowed to be accepted at a private school that offers theology as a field of study. funds that are available to any other course of study at that private school.

this nation is about freedom OF religion, not freedom FROM religion. the government should not fund religious education specifically because its religious. however, the government should not withhold funds for the same reason, if those funds are available for every other field of study.

[Darth Buddha]

Well put... though I'm a bit biased as I suspect I share your views on religion..

[JadedLegend3]

Originally posted by Twich
I think that if the government is going to help pay for higher education amongst people, then the government should do it across the board. Not dependent upon what they study. It should be a "we want to help higher education" rather than "we want to help higher education amongst everyone except students studying certain subjects."

It *is* (IMO) descrimination and it is wrong. The government is telling people that it will help pay for their education if it's the "right" education and THAT is not what this country has been built upon.

Very much agreed. You hit the nail on the head with that, Twich. If the government gets todecide who/what they will endorse, then what do you really think they'll be endorsing? People and careers/majors that will make money for this nation. And that's not necessarily a bad thing, but it's discrimination, clear as day.

[Darth Buddha]

Indeed, what would be next... refuse to fund you if you if you take a course in Marxism? or philosphy?

This is indeed a slippery slope. Given this court's biases, I am truly surpised they came down on the side they did.

This isn't enough to get me activist, but it is damned close to it.

[waltersgirl]

though I'm a bit biased as I suspect I share your views on religion..

i don't think so, not from what i read, but we certainly agree on this issue.