Room to exercise any belief
but religious ones?

An important court case is looming on the horizon with little attention in the media. The U.S. Supreme Court is currently considering Governor Gary Locke et. al. v. Joshua Davey. In the words of Justice Stephen G. Breyer, “The implications of this case are breathtaking.”

            Joshua Davey is a Washington resident who qualified for that state’s Promise Scholarship. The Washington Legislature created the scholarship in 1999, limiting the funds to students in the top ten percent of their classes who met the financial requirements, and who intended to attend approved colleges or universities. Davey met all of those requirements, and was granted a scholarship. The state later stripped his scholarship because Davey declared a dual major of business and theology. The state cited its own constitution, which prohibits the use of state funds for religious instruction of any kind. Furthermore, a state statute enacted into law in 1969 specifically stated, “No aid shall be awarded to any student who is pursuing a degree in theology.”

            Davey filed suit in 2000 claiming that the state law and constitution were unconstitutional as they violated his free exercise, free speech, free association, and equal protection rights under the U.S. and state constitutions. The U.S. District Court disagreed ruling that the state had only refused to fund his education; it had not forbid him from undertaking his studies.

            Davey appealed the lower court decision. His appeal landed at the Ninth U.S. Circuit Court of Appeals. That appellate court, viewed by many as the most liberal circuit in the nation, was the same court that acted in favor of removing the words “One nation under God” from the Pledge of Allegiance. In a 2-1 decision the Ninth Circuit Court of Appeals reversed the lower court decision saying that Davey’s rights had been violated by the state, which had suppressed Davey’s religious point of view.

            From Washington State’s perspective, the issue is whether the state can be compelled to fund religious education. It is important to note that that state’s constitution did not itself create the clause prohibiting state funds from going to religious education. The Washington constitution was written under the influence of the Blaine Amendment of 1875.

            James G. Blaine was an outspoken anti-Catholic as well as a congressman. In 1875, Blaine attempted to get the U.S. Constitution amended so as to prohibit any public funding for religious schools. When the amendment was narrowly defeated, congress acted so as to require new states to have that provision in their constitutions to be considered for statehood. 37 states, including Washington, have these constitutional provisions, which the Arizona Supreme Court recently named as a “clear manifestation of religious bigotry.” Joshua Davey is not the first victim of the Blaine Amendments; he is just the first person to successfully mount a constitutional challenge before the U.S. Supreme Court.

            Piling on the state of Washington’s side of the argument have been more than three-dozen interested parties including the states of Massachusetts, Missouri, Oregon, Vermont, and South Dakota. On Davey’s side an equally long list of groups have taken a stand including the states of Florida, Mississippi, Texas, and Utah. 

            The decision is not an easy one from any religious or secular perspective. To require funding for one religious group, would, of course, necessitate funding for other forms of religious instruction. While I might be comfortable arguing for Joshua Davey’s right to study toward a vocation as a Christian minister, the decision could also have state funds going toward the religious education of Muslims, Hindus, and Wiccans. So the issue must be one of principle and not merely based on partisan interests.

            As the Blaine Amendments of the 1800s suggest, this is not a new issue. Justice Sandra Day O’Connor said during recent oral arguments before the court that, “There’s been a couple of centuries of practice in this country of not funding religious instruction by tax money.” O’Connor’s reservations are worth noting as she is often an important swing vote on church-state issues.

            Where we must go back to is the First Amendment to U.S. Constitution, which says that each of us has the right to the free exercise of religion. Washington State stripped Davey of a scholarship and in so doing was giving one of its citizens financial reasons to violate his own religious beliefs and sense of call to ministry. The state had no problem issuing the scholarship to Davey if he would change his major away from a degree that taught religion from a religious perspective, rather than a secular, scholarly approach.

            If the State of Washington wishes to distribute tax monies through scholarships, then it cannot discriminate against a religious point of view anymore than they could limit scholarships to theology majors in Christian colleges. The First Amendment was intended to grant freedom of religion not freedom from religion.

            While standing up for Joshua Davey may mean that I will have to one day stand up for the rights of a religion major whose religious views I do not share, I can not help but agree with the Ninth Circuit Court of Appeals assessment that Washington is discriminating against Davey’s religious point of view. I hope that the U.S. Supreme Court finds the boldness to take a stand on this issue in favor of Joshua Davey’s right to follow his own religious beliefs.

            (The Rev. Frank Logue is pastor of King of Peace Episcopal Church in Kingsland.)

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