Supreme Court surprises me

I was somewhat surprised when the opinion came down this morning in Locke v. Davey (pdf).

A Washington state college student received a scholarship from the state under a program which prohibited the scholarships from being used for devotional studies.  Since the student Davey was intending on pursuing a degree in pastoral ministry, the state refused to allow him to use their money to help pay his education expenses.

By a vote of 7-2, the Supreme Court said that the State of Washington could do this.  Chief Justice Rehnquist wrote the opinion, and concluded that:

[W]e can think of few areas in which a State's antiestablishment interests come more into play. Since the founding of our country, there have been popular uprisings against procuring taxpayer funds to support church leaders, which was one of the hallmarks of an established religion.

Since the First Amendment prohibits the establishment of religion, the State can refuse to provide funds to train pastors or other church leaders.  This makes perfect sense to me, but I imagine some people will be fairly upset about it, including Justices Scalia and Thomas (pdf).

When the State makes a public benefit generally available, that benefit becomes part of the baseline against
which burdens on religion are measured; and when the State withholds that benefit from some individuals solely
on the basis of religion, it violates the Free Exercise Clause no less than if it had imposed a special tax.

I'm not a First Amendment scholar by any stretch of the imagination, but this is a particularly interesting case, because it demonstrates the interplay between the two prongs of the First Amendment's protection of religion :

(1) Congress shall make no law respecting an establishment of religion,
(2) or prohibiting the free exercise thereof

Rehnquist and the majority see the scholarship program as threatening an establishment of religion by providing state funds for religious training.  Scalia sees the denial of funds as prohibiting Davey's free exercise.  Read the whole opinion if you're interested in this area.

•  someting else

  What I find interesting is how does this compare with Bush's giving money to religious groups for community service type things?  Same issue isn't it.  I can't remember much about what Bush was planning on doing, but it was to give money to church's.  And what about the abstinence program that is sending money to church's?!

  Shouldn't this ruling reverborate through several of Bush's plans?

  by gehrigsranch on Wed Feb 25, 2004 at 02:27:28 PM PDT

  •  no

    This opinion is about what the state chooses not to do (fund religion).  The voucher and faith-based-program cases are about what the state chooses to do (fund religion).

    So the state is allowed to fund some religious activities if it chooses (despite the establishment clause), but it's not required to do so (because of the free exercise clause).  Had the SCOTUS ruled otherwise, the voucher programs would probably be mandatory.  As it is, they are merely permissible.

    by phil on Wed Feb 25, 2004 at 02:36:50 PM PDT

    •  clarification

      The free exercise does not require what the establishment clause fails to forbid.

      by phil on Wed Feb 25, 2004 at 02:38:51 PM PDT

•  Not so sure

  I'm not so sure that I agree with this decision, but I'm no expert either.  It seems to me that the state isn't funding religion any more than they're funding, say, medicine when they give a scholarship that's used for pre-med.  

  It would be different if the state was offering scholarships that could be used exclusively for religious studies, or if they allowed Christians to use the scholarship for devotional studies but not Muslims.  But as it is, I don't get it.

  by strannix on Wed Feb 25, 2004 at 02:35:24 PM PDT

  •  Same reaction

    I do corporate, so I'm absolutely not a 1st Amend. scholar, but I found this decision surprising and to my mind, wrong.  Good goobers, I'm agreeing with the AntiChr, errr, I mean, Scalia.

    by Passing Shot on Wed Feb 25, 2004 at 02:42:41 PM PDT

  •  Read Phil

    Look at Phil's comment.  The holding in this case is that the state can choose not to fund religious studies if it wants.  The narrow holding upholds the Washington law that set up the scholarship program which included a provision prohibiting its use for religous training.

    States do the same thing all the time in other studies - a state is certainly free to set up a medicine scholarship program that only provides money to students studying medicine if it wants; without getting in trouble for not providing money to philosophers or lawyers.

    by Edge on Wed Feb 25, 2004 at 02:44:22 PM PDT

    •  yeah

      I understood better after reading Phil's comment.  I think it's wrong to frame this as a church-and-state issue, when it's really not.

      by strannix on Wed Feb 25, 2004 at 02:50:09 PM PDT

•  Very interesting

  Disclaimer: I am neither a lawyer nor a constitutional scholar.

  Scalia and Thomas make the case that the student is entitled to use the money because the law denies him equal protection under the law. In other words, they say that the state is providing a general benefit to the population and then excluding theology majors specifically. They say that including theology majors does not establish religion, especially in light of the fact that no particular religion would be specified.

  So, I look at Scalia and Thomas make this perfectly reasonable argument, and I see Rehnquist writing the opposing opinion. Call me paranoid, but the argument Scalia and Thomas use in this case is strikingly similar to one of the arguments that will be used in an attempt to strike down DOMA. While Scalia and Thomas are craven enough to "forget" this argument in favor of "gay marriage will lead us further down the slippery slope to hell, the Constitution be damned," perhaps Rehnquist chose not to sign on to this decision with the later one in mind.

  by Doug in SF on Wed Feb 25, 2004 at 02:47:06 PM PDT

•  The Dissenting Opinions

  Before you start worrying about agreeing with Scalia and Thomas, you might want to read what they actually wrote... here's my take on it. Thomas' opinion, especially, has all the internal logic of a Star Trek: Voyager time travel episode.

  by Anton Sirius on Wed Feb 25, 2004 at 02:52:46 PM PDT

  •  Good take

    Nice analysis, Anton.

    The irony in Justice Thomas's opinion is the whole convergence of science and religion in the wingnut glossary.

    I'm surprised he didn't just come out and say theology is like the study of history, or that theology is like a degree in biology from a different slant.

    by Edge on Wed Feb 25, 2004 at 02:55:52 PM PDT

    •  I was shocked that

      Rehnquist voted with the majority, even writing the opinion. He seems to be more and more perturbed with the current radical right these days, but up 'till now he's always voted with them.

      That he is staying on so long, even at age 83, tells me even he may be terrified at who Dubya would replace him with, and at a Chief Justice Scalia.

      by JamesB3 on Wed Feb 25, 2004 at 03:18:34 PM PDT

•  Heard it on NPR

  I heard this in the car on NPR, and have yet to read anything about it outside of this thread.

  I'm not only surprised at the Court's outcome, I'm shocked that at this first glance, I actually think they are wrong.

  I need to look at this further, but in my mind so far, if you're a state handing out scholarship money, you can perhaps encourage teaching or medical study with a specific program with a specific return for the state in mind, but if this is a general scholarship fund, I don't think excluding theology is fair.

  by Mr Furious on Wed Feb 25, 2004 at 03:29:41 PM PDT