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Religious Studies & State Funds

December 2, 2003 at 12:00 AM EST
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GWEN IFILL: Can a state deny a student scholarship money for studying theology? That question goes to the heart of a Washington State case argued before the Supreme Court today. Jan Crawford Greenburg of the Chicago Tribune was there, and is here now to give us a sense of how things went on in the courtroom today. Jan, was this a case about discriminating against religion?

JAN CRAWFORD GREENBURG: Well, that’s what a lawyer for the student and a lawyer for the Bush administration argued in court today, that Washington State in denying this student scholarship money to study theology had discriminated against him based solely on his religious beliefs and said that he could not get state scholarship money while they awarded the state scholarship money to other students. But only the religious student, the student studying to be a minister was excluded from the program. They said that discriminated against him and violated his First Amendment rights under the U.S. Constitution to freely exercise his religious beliefs.

GWEN IFILL: This was a scholarship of about $1,100.

JAN CRAWFORD GREENBURG: Per year.

GWEN IFILL: Per year. Did it make the difference between whether he was able to go to school or not?

JAN CRAWFORD GREENBURG: Not in his case. I talked to him last week. He said what he did was took another job waiting tables and was able to make up the difference. But it was an important principle to him. And when the state told him that he could not get this scholarship money, he had already enrolled in a Christian college outside Seattle and had been attending for about two months.

When he found out from the state that it was yanking away the scholarship money, he decided to contact a legal group and pursue legal action against the state. For him it was a matter of principle. He wanted other students in his position not to be denied that kind of money even though it didn’t make the difference for him.

GWEN IFILL: Was the principle about his ability to express himself, a free speech principle or was it the religious principle?

JAN CRAWFORD GREENBURG: It was a free exercise, the First Amendment of the Constitution says that governments may make no law that it hampers or infringes upon a person’s ability to freely exercise his religious beliefs. And the student, Joshua Davey, said that in denying him this money, the state was hampering his ability to freely exercise his religious beliefs.

GWEN IFILL: Is Washington State unique in this? Are there other states which also have such a bright line drawn between what you can pay for and what you can’t?

JAN CRAWFORD GREENBURG: There are. There are about 37 other states that have similar provisions in their state laws and in the state constitutions that erect a high barrier between the church and the state. Now, of course, Washington State officials argued and a lawyer for the state argued in court today that they’re not discriminating against anyone. They’re not singling him out because of his religious beliefs.

They say they’re relying on a provision in the state constitution written in 1889 that prohibits state taxpayer money from going to pay for religious instruction and religious training. So they say it’s a matter of their state constitution, and the lawyer for the state today said that the framers of the Washington constitution thought it was very important to limit government involvement in matters of religion, to preserve freedom of conscience and that kind of thing for Washington citizens.

GWEN IFILL: So the dispute before the justices become which constitution, the state constitution or the federal Constitution trumps.

JAN CRAWFORD GREENBURG: Sure and the more conservative justices today suggested quite clearly that the state constitution in this case has to give way because they saw this as a clear violation of this student’s ability to practice his religious beliefs.

GWEN IFILL: And who was making that argument in the court today?

JAN CRAWFORD GREENBURG: Justice Scalia most notably but the chief justice also I thought tipped his hand. And the court typically is very closely divided on these controversial religion cases involving funding of religious activities — often 5-4. What that means is we have the four more conservative justices, the four more liberal justices and very often the one in the middle, Justice Sandra Day O’Connor, her views can determine how the court may come out today.

Today’s argument really showcased the deep divisions on the court in these church-state issues. We had our usual lineup; we had the more liberal justices arguing that the state was not discriminating against this student. We had the more conservative justices suggesting that it was. Then we had Justice O’Connor who I thought seemed deeply troubled today by arguments that the state had gone too far.

She seemed troubled that a ruling for the student could call into question a host of other concerns like school voucher programs, other state constitutional provisions. She indicated that she thought that perhaps Washington State had not gone too far and that it was appropriate to deny this student this scholarship.

GWEN IFILL: Didn’t the court rule on this voucher issue involving the city of Cleveland in 2000?

JAN CRAWFORD GREENBURG: The court has ruled that school vouchers are permissible — that if the voucher itself goes to a religious school that that would not violate another religious clause in the federal Constitution, the establishment clause. Of course, the First Amendment also prohibits the government from establishing a religion. Now the court has ruled that when a religious school gets voucher money that just goes because of a student’s independent choice, that doesn’t violate the establishment clause.

Today’s case, and the lawyer for the state of Washington suggested that and several of the more liberal justices suggested that, would take it the next step. They suggested that a ruling for the student in this case requiring the state to give him the scholarship money could mean that on the issue of school vouchers in secondary schools, for example, that states would be required to allow religious schools to participate, so if you had a private voucher program in your state, in Ohio or wherever, you couldn’t exclude the religious schools from getting that money either.

GWEN IFILL: You get to watch the justices sometimes exchange, negotiate out loud almost on these issues. Today I gathered there was some discussion about this voucher issue and how you define it involving Justice O’Connor and Justice Kennedy.

JAN CRAWFORD GREENBURG: Well, Justice O’Connor asked a lawyer arguing for the student to get the scholarship that this would have a major impact, wouldn’t this really have a significant impact on school voucher programs? A lawyer for the student conceded that yes it would. Justice O’Connor again suggested she was very troubled by the broad sweep of this case.

The other justices more to the left sensing her concern then started pointing out, well, it would have a breathtaking impact. It would have affect a host of other programs — Justice Breyer and Justice Souter both sensing O’Connor’s concern, trying to draw her to their side.

Justice Kennedy, another moderate that we often look to in when the court is closely divided, tried to suggest that the court could make its ruling more narrow so it would really only apply in this student’s case or cases like it. I don’t know if Justice O’Connor was convinced.

GWEN IFILL: Joshua Davey, this student, if he had gone to the University of Washington, to a nonsectarian school and chosen to major in theology, would have this have had the same effect? Do we know?

JAN CRAWFORD GREENBURG: It wasn’t the school that the courts focused on. He still could have gone to that school and majored in business administration. It was his choice of majoring in theology — preparing to be a minister that the state said its constitution prohibited it from funding that state money could not go to religious training.

GWEN IFILL: And ultimately of course he decided to be a lawyer.

JAN CRAWFORD GREENBURG: First year at Harvard Law School now.

GWEN IFILL: Jan Crawford Greenburg, thanks a lot.

JAN CRAWFORD GREENBURG: You’re welcome.