Anne Gearan
Associated Press
Dec. 3, 2003 12:00 AM
WASHINGTON - The Supreme Court justices appeared deeply divided Tuesday in a
church-state case involving a college student who lost his taxpayer-funded scholarship
because he chose to major in theology.
In a case with implications for President Bush's plan to allow more church-based organizations to compete for government money, the administration's top Supreme Court lawyer argued it was improper for Joshua Davey to lose the Promise Scholarship awarded by the state of Washington.
The scholarship was rescinded after Davey declared his major. State officials deemed it an unconstitutional blending of church and state. Davey sued the state. The trial court rejected the challenge, but the 9th Circuit Court of Appeals reversed the ruling, setting up the Supreme Court case.
"It's treating religion differently from non-religion," Justice Antonin Scalia told Washington's lawyer, Narda Pierce. "You can study anything you like and get it subsidized, except religion. Why does that not violate the principle of neutrality?"
The Bush administration backs Davey, arguing that states cannot discriminate against religious education.
"The Promise Scholarship program practices the plainest form of religious discrimination," Solicitor General Theodore Olson told the justices. "The clear and unmistakable message is that religion and preparation for a career in the ministry is disfavored."
Several justices seemed skeptical, suggesting that the country has long had a hands-off policy when it comes to the training of clergy.
Justice Stephen Breyer told Olson that the Supreme Court could force a vast reordering of government spending if it sides with Davey.
A broad ruling that Davey had a constitutional right to the scholarship money would mean government would have to be careful not to exclude religious programs or organizations in many areas, such as government contracting and medical programs, Breyer said.
"The implications of this case are breathtaking," Breyer said.
Davey qualified for the scholarship along with students studying other fields. Only his chosen field was excluded, his lawyers said. Davey's backers say that violated the Constitution's guarantee that people may worship freely.
Davey continued his schooling without the financial aid. So, Justice John Paul Stevens asked, how the loss of the money prevent Davey from practicing his religion?
"He practices it at a price," Olson replied.
"He practices it without a subsidy," Stevens shot back.
As often happens, Justice Sandra Day O'Connor seemed to be in the middle. She closely questioned lawyers on both sides about the case's similarities to the emotional debate over school vouchers.
The Davey case is a follow-up to the court's major ruling last year that allowed parents to use public tax money to send their children to religious schools. A ruling in Davey's favor would make it easier to use vouchers in many states, because it could overturn provisions in state constitutions like the one at issue in Washington.
Like 36 other states, Washington prohibits spending public funds on this kind of religious education.