State wins high-court ruling on scholarship

By Tan Vinh
Seattle Times staff reporter

	Joshua Davey fought a decision to rescind a scholarship after he chose to study for the ministry. He's now enrolled in Harvard Law School.
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Even though they have a constitutional right to freely practice their religion, students who study for the ministry can be denied scholarships funded by state tax dollars, the U.S. Supreme Court ruled yesterday.

By a 7-2 vote, the court said that Washington state's Promise Scholarship Program, which permits any course of study except pastoral training, is not discriminatory.

"That a state would deal differently with religious education for the ministry than with education for other callings" does not mean that it is hostile to religion, the court said.

Many analysts said the ruling in the case involving Joshua Davey of Spokane, dealt a blow to the national school-voucher movement and the Bush administration's push for taxpayer support to religious groups that provide social services.

"This puts a gigantic boulder toward expanding the voucher program around the country and faith-based initiatives in many states," said Barry Lynn, executive director of Americans United for Separation of Church and State in Washington, D.C., which backed Washington state in the case.

But others, such as Seattle University School of Law professor Jim Bond, believe the ruling is too narrow to affect the voucher movement.

Chief Justice William Rehnquist wrote for the court that "Far from evincing hostility toward religion ... we believe that the Promise Scholarship Program goes a long way toward including religion in its benefits" because award recipients can attend religious schools or take courses on religion.

But using scholarships to pay for training in the ministry is another matter, the court said. Rehnquist wrote, "Training someone to lead a congregation is an essentially religious endeavor."

Justices Antonin Scalia and Clarence Thomas dissented, saying it was discrimination when Washington state took away Davey's scholarship.

The case was Locke v. Davey.
 
Davey's saga began in 1999 when he enrolled at Northwest College in Kirkland, which is affiliated with the Assemblies of God. The state initially gave him a $1,125 Promise Scholarship, an award for low-to-middle-income students with good grades. But when Davey declared a major in pastoral ministries, along with business management and administration, the state rescinded his scholarship.

Davey filed suit in federal district court and lost.

But in a 2-1 decision by a three-judge panel of the 9th U.S. Circuit Court of Appeals, the state's scholarship criteria were ruled discriminatory on the basis that they suppressed "religious points of view" and violated both the First Amendment's guarantee of free exercise of religion and the 14th Amendment's equal-protection clause.

The scholarship rules, it said, "singled out" students who pursue divinity degrees and force "them to make the difficult decision of choosing to accept funding at the expense of forgoing religious study."

The state appealed that opinion, prompting the Supreme Court to hear the case in December.

Some had seen the case as a chance for the court to overturn the bans in some state constitutions against publicly funded school vouchers. In 2002, the court had ruled that the U.S. Constitution would not prohibit parents from getting public tax money to send their children to religious schools.

But Washington, like 36 other states, has restrictions on government support of religion that are broader and tougher than the U.S. Constitution's and are barriers to setting up voucher systems that include religious education, said Gonzaga School of Law professor Mary Treuthart, a specialist in constitutional law.

Voucher supporters yesterday did not concede defeat, but stressed those parts of the court's opinion that seemed to limit the ruling to the Washington state situation.

"My favorite passage in the whole opinion is where it says, 'The only interest at issue here is the State's interest in not funding the religious training of clergy,' " Clark Neily, an attorney for the libertarian Institute for Justice, which is helping to defend Florida's voucher program in that state's courts, told The Washington Post.

Washington state has no voucher system, but yesterday's verdict will affect scholarships. Students can use state financial aid to attend public, private and religious colleges and study religion in a historical or social context. "They just can't use the financial aid to major in theology and receive training to become a minister," said Gov. Gary Locke.

Several local college presidents and administrators were divided on the ruling.

The Rev. Stephen Sundborg, a Jesuit and president of Seattle University, said using tax dollars to help students pursue ministry careers would be like using tax dollars to help develop a church, because those future clergymen will serve a religious community or denomination.

"I welcome the decision. I think it is the right one," he said of the ruling.

At Northwest College, where Davey was a student, president Don Argue said the ruling will limit access to government programs based solely on a choice of major that could prepare a student to serve a local community in ministry.

"The ruling could have dramatic ramifications as it seems to now allow discrimination based on religion," he said.

Davey graduated from Northwest College last spring with the highest academic honors, according to administrators there. But in part because of his lawsuit, he now aspires to be an attorney rather than a minister and is in his first year at Harvard Law School.

His lawyer Jay Sekulow of the American Center for Law and Justice, who argued the case before the Supreme Court, said the ruling "clearly sanctions religious discrimination."

Davey "simply wanted to be treated equally on the same terms and conditions as other scholarship recipients," Sekulow said.

Washington Solicitor General Narda Pierce, who argued the case on behalf of the state, said "we are pleased that the court upheld the right of the state," in agreeing that its scholarship policy does not discriminate.

"The U.S. Supreme Court has said there is room for states to make their own decisions about religious liberties," she said.

Tan Vinh: 206-515-5656 or tvinh@seattletimes.com.

Information from The Associated Press was used in this report.

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