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Supreme Court Watch

February 25, 2004 at 12:00 AM EDT

GWEN IFILL: The question before the court was whether a state could deny a government- sponsored scholarship to a student studying to become a minister. The answer today: An unexpectedly lopsided yes, as the court ruled 7-2 in favor of Washington State.

What did this latest church- versus-state ruling tell us about other religious issues before the court, including school vouchers? To take us inside the Supreme Court chamber, we turn to Marcia Coyle from the “National Law Journal.” NewsHour regular Jan Crawford Greenburg is on maternity leave, little girl. Remind us, Marcia, who this student was.

MARCIA COYLE: The student was Joshua Davey, and he wanted to go to a bible college, Northwest College in Washington State. He had always planned to be a church pastor.

When he went to Northwest College, he took a double major in theology and business administration. He had been awarded a scholarship, a state funded scholarship. It’s called the Promise scholarship program. And that program awards academically gifted students but cannot be used if you major in theology. He could not use this scholarship. He turned around and he sued the state.

GWEN IFILL: Today the court agreed with the state. What was the reasoning?

MARCIA COYLE: Chief Justice Rehnquist wrote the opinion for the 7-2 majority and he said that Davey was wrong in saying that this discriminated on the basis of religion. Davey was arguing that his practice of religion was burdened in an unconstitutional way. And he looked to the free exercise clause of the first amendment to make that argument. And the free exercise clause does protect our practice of religion.

Chief Justice Rehnquist said that this was really unlike other laws and programs that the court had struck down because they burdened the practice of religion. He said this program really doesn’t disfavor religion, and if it does, it very mildly disfavors it. There were no criminal or civil sanctions imposed. The student wasn’t forced to choose between his religious beliefs and the government benefit here. Ministers, which Mr. Davey wanted to become, weren’t prohibited from participating in public affairs. He said the state’s interest here was in separation of church and state. And this was an interest that can be traced back to the founding fathers, back to the early years of the country when we had popular uprisings against tax assessments in order to fund religions. So the state had a historical interest, and it had a substantial interest in separation of church and state.

GWEN IFILL: If the distinction in this case that it was the state that had outlined this in its own state constitution as opposed to other religious– other religion cases in which the court has seemed to move more toward commingling church and state.

MARCIA COYLE: Yes, first of all, this was written into state law as well as the state constitution. The constitutional amendment here was very broad in prohibiting state religious activities. The state law then said in this program you can’t fund degrees in theology. It seems counter to the trend where we’ve seen that the Supreme Court has been more accommodating of government and religion. But those cases also fell under the establishment clause of the Constitution, which is sort of the second clause in the first amendment that protects separation of church and state.

GWEN IFILL: Justices Scalia and Thomas were the dissenters in the 7-2 decision. What were their arguments?

MARCIA COYLE: Justice Scalia said that this was discrimination. It couldn’t be clear — it was on the face of the statute, singled out a particular course of study. Chief Justice Rehnquist said, well, it does single out a course of study, but look, religion is different. The Constitution acknowledges that training in a religion profession is different from training in another profession because training to be a minister is an essentially religious endeavor. And so the state here justified it not to fund a particular course of study. It wasn’t hostile to religion.

GWEN IFILL: This is different from the other cases we talked about at this table how, for instance, we talked about school voucher cases. We talked about in a more political sense, the administration’s efforts to expand faith-based initiatives. One at a time, how is this different from the vouchers?

MARCIA COYLE: All right. Well, this case actually attracted a lot of attention because of the school voucher debate. The amendment in the Washington constitution is very similar to other state constitutional amendments that prohibit state funding of religious activities. Supporters of school vouchers right now are fighting in those states to invalidate those state amendments because they see them as an obstacle to school voucher programs. So they were hoping in this case they might get a statement from the Supreme Court that said you can’t discriminate on the basis of religion in your state constitution.

GWEN IFILL: The court stayed wide of that.

MARCIA COYLE: It really did. It said this is a narrow case amendment and the state constitution isn’t like the other amendments. So the school voucher supporters did not get what they were hoping for in this particular case. It also was attractive to those involved in the debate over President Bush’s faith-based initiatives. And there was hope that it would have implications for that.

Good lawyers, I think… and there are very good lawyers in these debates… will always find something in Supreme Court opinions to support their cause. I think those who support the president’s faith-based initiative will look at this opinion and see Chief Justice Rehnquist’s language that the state of Washington could have funded the doctorate of theology study under the establishment clause. There wouldn’t have been any problem.

There was no, you know, commingling or entanglement of church and state. And they’ll say, okay. It will be all right under the establishment clause under the federal constitution for the federal government to support religious-based organizations providing social services. Opponents of faith-based initiatives will look at this opinion and say the Supreme Court said it’s not discrimination. It doesn’t violate the free exercise clause of the federal constitution not to fund these activities.

GWEN IFILL: So let me get this straight, I guess and I think I’m about to confuse it. If you have a school voucher program which deems that you must fund a certain amount of religious education or pay for education that is in a religious environment, that hasn’t… the court did not speak to that. But if you have a case which is the opposite of that, the court said you are allowed to ban it.

MARCIA COYLE: This shows the tension between the free exercise clause and the establishment clause. The chief justice said what the establishment clause allows is not necessarily required by the free exercise clause.

The school voucher case that got to the Supreme Court was a city program. What was at issue before the supreme court was not a state constitutional amendment prohibiting funding of religious activities. What was before the supreme court was whether that school voucher program violated the establishment clause of the first amendment. So the next step, the next battle is going to be over these state constitutional amendments.

GWEN IFILL: As also, Marcia Coyle, you explain it better than I could. Thank you very much.

MARCIA COYLE: My pleasure.