LOCKE v. DAVEY
The Washington State Promise Scholarship, created by the state legislature in 1999, gives college scholarship money to talented students. However, this money cannot be used to obtain a degree in theology if the program is taught to cause belief. Washington's constitution prohibits funding religious instruction. The 1969 state code applied this ban to college financial aid.
Joshua Davey forfeited his Promise Scholarship money in order to major in pastoral ministries at a private Christian college. Davey filed suit in U.S. district court, claiming the state constitution's ban on funding religious instruction violated his First Amendment right to free exercise of religion (in the U.S. Constitution). The district court rejected Davey's claim. The Ninth Circuit Court of Appeals reversed, concluding Davey's free exercise rights were violated.
If a state provides college scholarships for secular instruction, does the First Amendment's free exercise clause require a state to fund religious instruction?
Legal provision: Free Exercise of Religion
No. In a 7-2 opinion delivered by Chief Justice William Rehnquist, the Court ruled that a state does not violate the First Amendment's free exercise clause when it funds secular college majors but excludes devotional theology majors. The Court rejected Davey's argument that the state scholarship program is unconstitutional because it is not neutral toward religion. "The State has merely chosen not to fund a distinct category of instruction," the Court wrote. Similarly the Washington Constitution - which explicitly prohibits state money from going to religious instruction - does not violate the free exercise clause. Unlike laws and programs the Court has struck down under the free exercise clause, nothing in either the scholarship program or the state constitution "suggests animus towards religion." States have a "historic and substantial interest" in excluding religious activity from public funding.
Argument of Narda Pierce
Chief Justice Rehnquist: We'll hear argument now in No. 02-1315, Gary Locke v. Joshua Davey.
Ms Pierce: Mr. Chief Justice, and may it please the Court:
To preserve freedom of conscience for all its citizens in matters of religious faith and belief, Washington's constitution limits the involvement of government.
It limits both the ability to regulate religious activities and to fund religious activities.
Chief Justice Rehnquist: Do you think the fact that that provision is in Washington's constitution makes it different than, say, if it were in a... simply in a statute?
Ms Pierce: Mr. Chief Justice, the recognition that this Court has given to a state constitution, as opposed to a statute, is that it is adopted by all of the voters of the state.
However, both the constitution and the state laws are subject to Federal constitutional provisions.
At issue today is our...
Justice O'Connor: Is... is it a program at issue here that provides basically money to the student to be spent as the student wishes?
Is it like a voucher program in that sense?
Ms Pierce: Justice O'Connor, the Promise Scholarship is to be provided to the student for purposes of educational expenses and they're required to use it for certain educational expenses.
The purpose of the Promise Scholarship established by the legislature is to strengthen the length between... the link between K-12 education and higher education, and in a recognition...
Justice O'Connor: Well, I'm just trying to find out how it works, whether it's like a voucher program, you give the money to the student and the student decides how to use it.
Ms Pierce: It... it works like a voucher program to the extent that it's for educational expenses.
I'm not familiar with the specifics of voucher programs, but the student is required to use it for those educational expenses.
It is not, for example, like a paycheck, where a person has those funds as their private funds and can dedicate those to any uses that they choose.
And that's a key point under the Washington constitution, because article I, section 11 says that public funds shall not be applied to religious worship, exercise, or instruction...
Justice O'Connor: How... how many states have similar provisions in their constitutions or laws?
Ms Pierce: It varies, Justice O'Connor, according to the particular provisions.
This provision refers to not using public funds for religious instruction.
We also have a provision that no public funds shall be spent at schools under sectarian influence.
I... I believe it's something in the neighborhood of 36 states who have some provisions relating to use of public funds for religious instruction, but those vary.
Justice Scalia: They were all adopted at about the same time, weren't these so-called Blaine Amendments?
Ms Pierce: Your Honor, this is not the Blaine Amendment.
The so-called Blaine Amendment are those that refer to use of public funds in schools under sectarian control.
That's a different provision of the Washington constitution.
That's article IX, section 4, and that was required by the enabling act that provided for our statehood, but this is a different provision.
It's a provision that was separate and apart, that was debated, that was added to Washington's constitution as a separate provision.
Chief Justice Rehnquist: And was that...
So this was add... this was added after Washington was admitted in 1889?
Ms Pierce: No, Your... Mr. Chief Justice, I'm sorry... it was at the same time of adoption, but it was not the provision that was required by the...
Chief Justice Rehnquist: The enabling.
Ms Pierce: enabling act.
It was not in the original proposed constitution set before the framers.
And during the course of that constitutional convention, that's where this language was added.
And I know, referring to the Blaine Amendments, there's been much made in the briefs of whether or not those amendments stemmed from anti-Catholic motivation.
There's certainly no evidence in Washington that there was any discussion, any evidence of anti-Catholic motive.
In Washington, both article I, section 11 and article IX, section 4, which is... more directly stems from the Blaine Amendment, Federal level, they've always been implemented in a non-discriminatory manner, prohibiting both the practice of any religion of any sort in our public schools, as well as any funding for private sectarian schools.
Justice O'Connor: But what if... what if a state prohibited only the study of theology from a Catholic perspective?
Would that survive?
Ms Pierce: No, Your Honor, we don't believe it would.
But what the state has done here is prohibited public funds for religious instruction wherever it occurs, including in a college...
Justice Scalia: Wait.
How... how do you reconcile that?
That's what I don't understand.
It seems to me that if you say it does not violate the religion clauses to prohibit the use for any religious instruction whatever, you would also have to say that it does not violate the religion clauses to say no public funds shall be spent for Jewish theology studies.
Why... why... I mean, the state is not permitted to discriminate between religious sects, but it's just as much not permitted to discriminate between religion in general and non-religion.
So how can you possibly... I mean, if we say that... that you can do this, it seems to me, we have to say you... you can also prohibit Jewish studies.
Ms Pierce: No, Justice Scalia...
Justice Scalia: Why not?
Ms Pierce: I don't believe that follows.
The line between funds for secular purposes and for religious purposes is a line that's been recognized by this Court in various funding cases and in reviewing government activities.
It's a line that recognizes both the values of the Establishment Clause and the values of the Free Exercise Clause.
Here, simply because the State of Washington is extending those values of the Establishment Clause beyond direct funding into indirect funding does not convert those values into hostility.
There's still the values...
Justice Scalia: It's... it's treating...
Ms Pierce: of protecting religious freedom.
Justice Scalia: it's treating religion differently from non-religion.
You can study anything you like and get it subsidized except religion.
Why is that not violating the principle of neutrality?
Ms Pierce: It is treating religion different from a realm in which religion... religious belief or non-belief does not enter what we refer to as secular studies.
Justice Souter: You're making the... are you... are you making the... or is Washington making the distinction between training in how to be religious, training as it were in the practice of some... of a religion that leads to the truth, on the one hand, and study about what people believe on the other hand.
I thought that was the distinction, how to be religious versus what religions believe.
Is that the distinction?
Ms Pierce: Yes, Your Honor.
Justice O'Connor: Okay.
Ms Pierce: And that was the distinction I meant to articulate.
Justice Souter: So, I take it, then, if it that's the distinction, you would... you would agree that if Washington funded a school of atheism, but wouldn't fund a school like this one, that there would be a violation of one or both of the clauses?
Ms Pierce: Yes, Justice Souter, because whenever you enter into the realm of faith or belief, 0010 whenever you try to affect someone's belief in that realm, that has been a particularly protected realm of individual conscience, that becomes religious, whether it's non-belief or belief.
It's when you...
Justice Souter: But it's the difference between being religious and studying religion.
That's your line, isn't it?
Ms Pierce: Yes, Your Honor, and I believe that's the Court's line.
It's the line that's been drawn in many of the direct funding cases of this Court, to teach about religion...
Justice Scalia: Can... can you not study atheism under this statute?
Suppose there is a course debunking, debunking all religious belief.
Would that be prohibited?
Would that be funded under this statute?
I don't see any... any prohibition of the funding of that?
Ms Pierce: Justice Scalia, I think when the statute is read in conjunction with Washington case law, and particularly the Calvary Bible Presbyterian Church case, that the definition...
Justice Scalia: What does the statute say?
I don't see how it can possibly apply to that.
What does it say?
Ms Pierce: Well, the statute says that no aid shall be awarded to any student pursuing a degree in theology.
Justice Scalia: In theology.
Ms Pierce: But...
Justice Scalia: Now, is... is a degree in atheism a degree in theology?
Ms Pierce: I believe it would be under the interpretation...
Justice Ginsburg: That would be a question, would it not, for the state supreme court to decide?
It may decide it needs to carry that limitation in order to be compatible with the Free Exercise Clause.
Ms Pierce: I...
Justice Ginsburg: And I think that certainly the Free Exercise Clause answers the question, can you give it to the Catholics but not to the Jews.
So that's... that's not an issue.
Ms Pierce: Yes, Justice Ginsburg, and I think that the Washington Supreme Court would interpret it that way, not only to be consistent with the Free Exercise Clause, but to be consistent with its own state constitutional provision and its purposes, which is to not use public funds for instruction in the realm of faith and belief and...
Justice Scalia: What cases do you cite for the proposition that you're asserting that the... that the Free Exercise Clause or the Establishment Clause applies differently to discrimination between different religions than it does to discrimination between religion in general and non-religion?
What... what cases do you cite for that distinction?
Ms Pierce: What we cite, Your Honor, is that line between the secular and the religious activity.
I believe it's the line that was drawn in the Schempp case, referring to the study about religion versus the study of religion, which is not, in our view, discrimination in the classic sense of that word.
Justice Scalia: No, but that doesn't... that... the issue there was whether you were discriminating against religion or not.
And since you are not prohibiting study about religion, that isn't the question here.
The question is, assuming you are discriminating between religion and non-religion, you can't study theology but you can study anything else, what is there in our cases that says that is okay, although it would not be okay to distinguish between Jewish studies or Catholic studies or Protestant studies and other studies?
I don't know a single case that says the principle of neutrality somehow applies differently so long as you're discriminating against all religion than it does when you're just discriminating against one denomination.
Did you have a case?
Ms Pierce: Well, Your Honor, in the context of this Court's aid to education under the Establishment Clause, and Mitchell v. Helms is a classic example, there's a distinction between providing materials, educational materials that are to be used in secular education, as opposed to those materials that might be diverted to religious, ideological education and...
Chief Justice Rehnquist: But that's... that's the Establishment Clause, isn't it, in Mitchell against Helms?
Ms Pierce: Yes, it is, Your Honor, and... and we believe the same... many of the same values underlie the Washington constitution.
And we don't believe that the distinction is made invalid because it is extended to indirect funding and doesn't apply only to direct funding.
Justice Kennedy: Well, I wanted to ask you about these values.
As I understand, this student could have done exactly what he in fact did if only he did not declare a double major.
He could have taken all of these religious perspective courses, if only he'd called his major business administration, which in fact it was because he had the credits for that, too.
That would have been permissible.
Is that correct, or am I incorrect?
Ms Pierce: Well, the statute focuses on whether a student is pursuing a degree in theology and... and...
Justice Kennedy: If... suppose that he pursued a degree in business administration and yet, ancillary to that or as options, took all of these other courses.
Could he have had the aid that he seeks?
Ms Pierce: Yes, Your Honor, we think that could have happened, but it's an unlikely...
Justice Scalia: All right.
Justice Kennedy: What is the state's interest in denying him aid simply because he declares a double major?
Ms Pierce: I believe the reason the legislature has focused on the nature of the degree program is because it's an inherently religious program, and if they were to...
Justice Kennedy: What is the state's interest in denying him funds simply because of the way he labels the major he chooses, if all the other instructions, all the other elements of the case are the same?
He takes all the same courses, he has all the same commitment as a Christian, and yet he's denied the relief in one case and given it... the subsidy in one case, and given it in the other.
What is the state's interest in doing that?
Ms Pierce: Justice Kennedy, I think the state's interest is not in that particular student, but in how you administer it overall.
And the way the state administers it overall, in order to avoid a class-by-class, student-by-student determination, is to look at the degree programs that are inherently religious that have, or ask the universities actually to do that...
Justice Ginsburg: Ms. Pierce, I thought that the...
Justice Kennedy: Well, what is the state's interest in... in denying aid for programs that are inherently religious?
What is that interest?
Is it a compelling interest?
Ms Pierce: Yes, Your Honor, we believe it is.
The interest is...
Justice Ginsburg: May I ask you just to clarify what I thought was the purpose of this, was that the state has decided it does not want to fund the training of clergymen, and it cites a long history of that.
And it's tried to be as accommodating as it can with that limitation.
I mean, certainly if what you're doing is vulnerable, it would be no less vulnerable if the state said, well, we won't fund that school at all because it's an evangelical school.
Ms Pierce: Justice Ginsburg... excuse me... the focus is on the religious nature of the instruction.
If someone had a career goal to enter the clergy and yet took a secular course of education, they would not be denied funding.
Certainly one of the underlying values of our Freedom of Religion Clauses at the Federal and state level is not to require people to support the promotion of a doctrine or religious belief with which they may not agree, and that, returning to Justice Kennedy's question, is... is the interest.
The way it's implemented by Washington, and it has been by Congress and by other states in other contexts, is to look at that core course of study because...
Justice Kennedy: But we've decided in Witters that it's unnecessary to do that to conform to the Establishment Clause.
Ms Pierce: Yes, Justice Kennedy...
Justice Kennedy: So, after... after that, then what is the state's interest at this point?
Ms Pierce: Well, the state's...
Justice Kennedy: Is the state's interest in redefining the Establishment Clause?
Ms Pierce: No, Your Honor, but the state has a different, although somewhat concurrent, scheme for religious freedom, and that involves not just avoiding a government endorsement of religion, which is what the Establishment Clause primarily turns and focuses on...
Justice Kennedy: But Witters said there is no endorsement.
Ms Pierce: And... and...
Justice Kennedy: So you can't use that.
Ms Pierce: No, and I'm not trying to.
Justice Kennedy: I still don't see what your interest is, and once you do define it, I want you to tell me if it's compelling, rational basis.
Ms Pierce: Okay.
Washington's interest expressed in 1889 was to protect the freedom of conscience of all its citizens, and that included not compelling its citizens to provide enforced public funds to support the promotion of religious beliefs with which they may or may not agree.
Justice Scalia: Does that mean that the state can decline to provide fire protection to churches and synagogues?
Ms Pierce: No, Your Honor, and that distinction has been made.
Justice Scalia: And Washington doesn't do that, does it?
Ms Pierce: It does not decline that, and there's...
Justice Scalia: So that... that general public benefit is extended to both religious and non-religious institutions equivalently, and people don't get upset about that, do they?
Ms Pierce: No, Your Honor.
I think providing the essential services that include people as part of our civilized community has been distinguished from other kind of funding when these questions are asked.
Justice Souter: Well, Washington's position, I take it, is that, although it... it will certainly put out the fire in the church, it won't spend money for the purpose of persuading people that they ought to be inside the church.
Is that the... the point you're making?
Ms Pierce: Yes, Justice Souter.
There is a distinction there and it's a distinction that's been made in a variety of contexts, but...
Justice Souter: And you're saying that even though it would not offend the Establishment Clause if the state did provide this sort of funding, there is still, I think your point is, there is still an area within which it has a choice, even though that choice may not be determined by the Establishment Clause?
Ms Pierce: Yes, Your Honor, because the purpose of the state constitution, which of course, when it was adopted in 1889, was not viewed as greater than the Establishment Clause, it was viewed as the only protection for religious freedom at the state level, since it wasn't until 1947 that the Establishment Clause was held to apply to the states.
And to return to your question, Justice Souter, the distinction between providing police and fire services to an organization and providing funding to assist in the educational purpose of that organization was made in Norwood v. Harrison in this Court.
In the very different circumstance, but for... for similar reasons, this Court held that textbooks could not be provided to segregated schools because that would aid the discrimination of those schools in violation of...
Justice O'Connor: Well, isn't that an Establishment Clause issue?
Ms Pierce: In that particular...
Justice O'Connor: It's been litigated under the Establishment Clause, right?
Ms Pierce: The provision of the... the aid...
Justice O'Connor: Providing textbooks or other aid to religious schools.
Those have been Establishment Clause challenges, and we had a... the Witters case from your state, and determined that the Establishment Clause is not violated by giving aid to the blind, which is used then to study for the ministry, right?
Ms Pierce: Yes, Justice O'Connor, and that's because under the Establishment Clause, the question is, is the government endorsing religion?
Under Washington's article I, section 11, the question is, is... are public funds being used for the promotion or... of religious belief or disbelief and...
Justice Souter: But do you... do you think that...
Ms. Pierce, may I ask you a question there on how you draw the line?
Because I want to get clear on one thing, and it was raised in effect by the questions earlier about the Blaine Amendment, I guess, but is my understanding correct that the State of... that this clause that we are dealing with here, and nothing else for that matter in the Washington law, forbids the state from paying... we'll call it a tuition voucher here... that is going to a sectarian school like this one, so long as it's not being used for theological education?
Ms Pierce: Justice Souter, there's a distinction in our state constitution...
Justice Souter: No, but isn't the answer, there is nothing that forbids that?
In other words, going back to Justice Kennedy's question, if this same student said, I want to study business and I want to study it at this sectarian school, there would be no impediment in Washington law to paying him the... or giving him the voucher or whatever you call it and letting him spend it at this sectarian school?
Is that correct?
Ms Pierce: That's true at the higher education level.
Justice Stevens: Okay.
But isn't it also true he could even take the same courses and get it as long as he didn't declare his major until he was a junior?
Ms Pierce: Your Honor, we... the statute says pursuing a degree in theology, so I think it should be properly read and is properly read by Northwest College as a student who is, during the academic terms that are funded, working toward that degree in theology.
Justice Stevens: But I... I just want to be sure I understand how it works in response to Justice Kennedy's inquiry.
Is it not true that he could have taken all or most of the religious courses he did take if he'd only declared a different major or postponed the time when he declared his major?
Ms Pierce: I believe he...
Justice Stevens: Which has a double aspect.
In one hand, as Justice Kennedy points out, the state interest doesn't seem all that compelling there, but on the other hand, the burden on him is also pretty slight, because all he had to was take a... just manage his curriculum a little differently.
Ms Pierce: Yes, Your Honor.
Justice Stevens: And... and I just want to know, am I correct that he could have taken either all or substantially all of the religion... religious courses and qualified for the scholarship if he just declared a different major?
Ms Pierce: You're partially correct, Justice Stevens.
I think he could have taken some of the same religion courses.
I don't think just simply declaring your major later is what meets the purpose of the statute.
The statute says are you pursuing...
Justice Ginsburg: Wasn't he counseled... wasn't he counseled specifically by the school to be honest?
Ms Pierce: Yes, Justice Ginsburg.
Justice Ginsburg: And not try to hide what his purpose was, which he was perfectly open about?
Ms Pierce: Yes, Justice Ginsburg.
Chief Justice Rehnquist: And, of course, if... if you take a whole bunch of religious courses, it may be they can't be counted for some other major other than the... the theology.
Ms Pierce: Well, the theology degree, Your Honor, does require, I believe at Northwest, 125 credits, and 79 of those credits are required to be in various Bible and theological courses, so I think it is... it would be possible, but unusual, for another student to have those same courses and not being pursuing a degree in theology.
Justice Breyer: Could we go back to Justice Kennedy's second part of what he was asking, because it's bothering me, too.
I think it's absolutely well-established, whether there's a case or not, that people have thought it's different when what the Federal government or state government says is, what we have here is a secular program, we're paying for secular programs, whether it's schools or social services or any one of a million things, or if it were to say, well, it's a Baptist program, but not a Catholic program.
I think if they said the second, they'd have to pass something like strict scrutiny as far as their reasons are concerned.
I think if they said the first, so far I don't think they would have to pass anything like that kind of test, but that's the question.
And I think that Justice Kennedy was saying, very well, what is the test?
What kind of scrutiny should you give under the Equal Protection Clause, where what the state has done is said we have a secular spending program.
Now, leave the atheist, because if the atheist is a program which concerns principles that in the mind of the atheist are similar to those that are religious in the mind of a religious person, I'm willing to call that a religious program.
That's not what I'm talking about.
I'm talking about just a regular secular aid program.
What do we judge that distinction on the basis of?
What kind of a test?
Ms Pierce: Justice Breyer, I believe it is a rational basis test, that is, it is a neutral line, it's a recognized line between the secular that does not involve the realm of belief and faith, and a religious that does.
Chief Justice Rehnquist: I didn't think this was an Equal Protection Clause case at all.
I thought it was... the challenge was freedom of religion.
Ms Pierce: Yes, Mr. Chief Justice, it is, and...
Justice O'Connor: The Free Exercise Clause of the First Amendment?
Ms Pierce: That is the question on which cert was granted, and...
Justice O'Connor: Right.
Ms Pierce: because it is a neutral line...
Justice Breyer: Well, I'm thinking of free exercise, but I'm thinking this is a discrimination case, so maybe it's totally different under free exercise, but you see the question.
Ms Pierce: Yes, and Justice Breyer...
Justice Breyer: And your answer's rational basis.
Ms Pierce: Yes.
Justice Scalia: Rational... you... you think there's a difference in free exercise if what the state says is, we are burdening the free exercise of all religions, as opposed to, we are burdening the free exercise of one particular religion.
You think there's a different... a different standard?
Again, I would ask for the case that... that suggests that.
Ms Pierce: Justice Scalia, in the first instance, this case involves application of public funds in a funding program, and we believe that the principle that a state's decision not to fund the exercise of a fundamental right is not a burden on that right, it's not an infringement on that right.
All that the State of Washington has done here is decline to fund theology studies...
Chief Justice Rehnquist: Certainly in our... in our Rosenberger case there was a rational basis for what the University of Virginia did, but we held it violated the Free Exercise Clause.
Ms Pierce: Yes, Mr. Chief Justice, and the purpose of the public forum principles that were applied in Rosenberger are to protect the open public forum.
There the Court specifically acknowledged that that was a forum for the publication, for the expression of ideas, and that the expression of those ideas in that open public forum would be incomplete if certain viewpoints were excluded.
But certainly the purpose of the Promise Scholarship is not to open a public forum.
It's more akin to the American Library Association case, where Internet access was provided, not to provide a forum for the Web publishers, but to promote education and learning.
Justice Kennedy: You think there is a... a rational basis suffices for the state to prohibit this student from declaring one of his legitimate majors?
Ms Pierce: We believe... yes, Your Honor, we believe there is a rational basis to not fund religious instruction wherever it occurs, including a theology course.
Justice Ginsburg: Is it essentially your position that not everything that is compatible with the Establishment Clause, not everything that the state could do under the Establishment Clause, it must do under the Free Exercise?
And if that's your position, how do you define the space in between those two where the state has a choice?
Ms Pierce: That is our position.
We don't think states should be in constitutional pincers where whatever they're allowed to do under the Establishment Clause or required to do, particularly given the history that states have come to their own path to religious freedom.
And I think applying the various principles on when you burden the exercise of religious freedom leads you to the latitude in this area.
Here, not providing funding does not infringe or burden a fundamental right, and that's all that the state has done.
Mr. Chief Justice, I'd...
Argument of Jay Sekulow
Chief Justice Rehnquist: Thank you, Ms. Pierce.
You're reserving your time.
Mr. Sekulow: Mr. Chief Justice, and may it please the Court: In the free exercise context, this Court has held that the minimum requirement of neutrality is that a law not discriminate on its face
That's clearly what is taking place here, and I'd like to put in context exactly how the implementation of the statutory program works.
Washington, when they adopted the Promise Scholarship program and how it's applied, works this way.
A student applies for this general grant.
In this particular case, Josh Davey applied for the grant when he was aware of it in the summer, was notified by the state that he was qualified and accepted in the program in August.
At that point he enrolled at Northwest College, which is an accredited and eligible institution.
It was not until... and he declared his major, the dual major, at that point in business administration and the pastoral ministries degree.
Two months later, it was two months until he was notified by the financial aid office through a memorandum that the state circulated that after reviewing the Promise Scholarship program, the state then decided that in fact there would be a prohibition put in place on pursuing a degree in theology and that state has interpreted that to mean pursuing a degree in theology from a religious perspective.
The check, Justice O'Connor, is sent directly to the student.
The school is the... in the sense the school gets the check and hands it to the student.
It's not written to the school.
The school cannot use it for... to... a private institution cannot use it at all for any expenditure.
They can't credit, they can't debit the account.
The school merely verifies that the student's enrolled.
The check then goes to the student.
It can be used for any...
Justice O'Connor: So it wouldn't violate the Establishment Clause, but I guess what we're addressing is whether there's a free exercise violation.
Mr. Sekulow: Right.
Justice O'Connor: How does this violate the student's right to free exercise of religion?
Maybe it's more expensive to go to school, but why does that violate his free exercise of religion right?
Mr. Sekulow: Joshua Davey, and the state has acknowledged this, of course, has the free exercise right to pursue a degree in theology.
The question here is the burden that's placed on it.
Of course, two responses.
With regard to the actual burden, here a general benefit was available to a student and a religious classification was utilized to deny the student access to those funds.
He met the criteria.
Justice O'Connor: Well, let me ask you this.
Mr. Sekulow: Sure.
Justice O'Connor: Suppose a state has a school voucher program such as the Court indicated could be upheld in the Zelman case.
Now, if the state decides not to give school vouchers for use in religious or parochial schools, do you take the position it must, that it has to do one or the other?
It can have a voucher program, but if it does, it has to fund all private and religious schools with a voucher program?
Mr. Sekulow: No, I think...
Justice O'Connor: Is that your position?
Mr. Sekulow: No.
Justice O'Connor: Well, why not?
I mean, why wouldn't it follow from what you are saying today?
Mr. Sekulow: For this reason.
The state can set neutral and eligible criteria for admission as an eligible institution.
Here it was accreditation.
Now, if the religious school, the school that was affiliated with the religious denomination met the general neutral eligibility requirement, and there was no countervailing Establishment Clause problems, yes, then it should...
Justice O'Connor: I... I don't know what you mean.
The state says all schools were going to have a program to give vouchers for use in all schools of a certain grade level, assuming the teachers are qualified to be teachers.
Mr. Sekulow: That...
Justice O'Connor: Can they refrain from making that program available for use in religious schools?
Mr. Sekulow: I... I would think not.
I think once it would go towards the private schools, as long as the eligibility...
Justice O'Connor: So what you're urging here would have a major impact, then, would it not, on... on voucher programs?
Mr. Sekulow: Well, it would.
I think a voucher program could be established that has a neutral criteria and if the private schools meet that criteria, including the private religious schools and there is no countervailing Establishment Clause problem, I wouldn't see any reason...
Justice Souter: Well, but the only criteria that they have...
Chief Justice Rehnquist: Sure... surely, the state can decide to fund only public schools.
Mr. Sekulow: Absolutely.
Chief Justice Rehnquist: And it's only when it starts funding some private schools that you get into the religious question.
Mr. Sekulow: That's correct.
Justice Kennedy: But I'm... I'm concerned...
Justice Stevens: But you say if they publish any private school they must publish... they must support all religious schools as well.
Mr. Sekulow: No.
Again, I think if they meet the accreditation standard, if the program were to...
Justice Stevens: But they could not just say we... we will publish all private schools except sectarian schools.
Mr. Sekulow: I don't think they could do that.
No, I think it would be...
Justice Breyer: That's the issue here, yeah.
Justice O'Connor: Even though there... there are quite a few state laws and constitutional provisions around the country that... that provide just that, aren't there?
Mr. Sekulow: There are.
Thirty-seven states have...
Justice Kennedy: Yeah.
Justice O'Connor: So the decision here could have very broad impact, I assume.
Mr. Sekulow: Interesting, Justice O'Connor, and admittedly, this is a bit of a moving target because state policies change, but there are approximately 37 states that have this type of amendment.
Twenty-five of those states have programs of aid that do not have a discriminatory basis upon religion.
It's given to any accredited...
Justice Souter: Mr. Sekulow?
Mr. Sekulow: Yes.
Justice Ginsburg: May I ask you the question that I asked Ms. Pierce, because I think this is really what the case turns on.
Is there any space between what one, what a state is permitted to do, what it's permitted to fund under the Establishment Clause and what it must fund under the Free Exercise Clause, and if so, what fills that space?
You've been candid in saying voucher, no.
If you... going to give to any private school, you can't leave out the parochial schools.
You certainly said that about this program.
Mr. Sekulow: Yes.
Justice Ginsburg: Suppose the... the state would say, we are going to fund professional education, lawyers, doctors, architects, engineers, but we're not going to fund people who are... who are in a divinity program.
Would that qualify or would that fall also?
Mr. Sekulow: Well, I think a program that were to just limit it to specific professions would not necessarily have to go towards theology.
For instance, in a lot of states using that example, Justice Ginsburg, there is a shortage of nurses right now.
And if the state were to adopt a program to fund education for nurses that included public and private schools, they don't have to bring theology...
Justice Ginsburg: No, but it would include... my program includes all professions, save one, and... and that is ministry.
Mr. Sekulow: Well, if it was as you described it, I would be here arguing the same point in this context.
The idea that you would list all of the professions and then say we are going to fund everything but those students studying theology would be again that religious classification, and I would think unless the state could establish its compelling governmental interest...
Justice Kennedy: As I... as I understand your answer to Justice O'Connor, if we decide in your favor, we necessarily commit ourselves to the proposition that an elementary and secondary school voucher program must include religious schools if it includes any other private schools.
It... it seems to me that your case can be resolved on a much narrower issue than that.
Here we have a... a college student who is being required to surrender his... his conscientious beliefs by declaring a major which otherwise would have been completely funded by the school, and I... I just don't see any interest in doing that.
It seems to me a... a very severe violation of... of religious conscience.
I think that's quite different from an overall neutrality principle, which would foreclose this Court on the voucher issue.
Mr. Sekulow: Well, I don't think... I agree, Justice Kennedy.
I don't think the Court has to go that far here.
Justice O'Connor: But why isn't...
But certainly that's what you're arguing.
I mean, your... your brief and your presentation certainly urges us to go that route.
Mr. Sekulow: If...
Justice O'Connor: Now, have we... have we, in looking at funding issues, have we dealt differently with the requirement of funding something out of public funds than for other purposes?
Mr. Sekulow: Well... well, certainly in the... in the direct aid cases and in the Establishment Clause context, but this is very similar to the Witters program, so there is not the countervailing Establishment Clause issue, and that's what I was going to address, Justice Kennedy.
Depending on how the voucher program is established would depend on whether the religious institutions would be included.
For instance, again I go to the eligibility issue.
Here, Northwest College was an accredited institution...
Justice Souter: Okay.
Let's assume that all the public schools and all the private schools, including all religious private schools are... are accredited in whatever way the state accredits them, and that the criterion, apart from religious education, is simply that the ultimate recipient of the voucher has to be an accredited school.
It seems to me, following Justice O'Connor's question, that the argument that would be made in any case in which a state says we will... we will allow a voucher to be spent in a private school, but not a private religious school is the same argument that Justice Kennedy was suggesting a moment ago, and that is that the religious student must somehow surrender a conscientious belief and go from a religious school and seek to be enrolled in a non-religious private school or a public one to get the voucher.
And I don't see why that argument would not be just as applicable there as the argument that you are making here.
Mr. Sekulow: Justice Souter, in this particular... using that example, here the school is a qualified school.
The Northwest College, which admittedly has a religious affiliation, it isn't...
Justice Souter: Sure.
Justice O'Connor: That's a wash.
Justice Souter: Everybody agrees.
Mr. Sekulow: It's their major.
Justice Souter: Everybody... the only criterion is, will we fund religious training in how to be religion... religious... or will we not?
And in fact, a... a similar argument would be made as between the... the religious school that teaches religion, and the private school that doesn't teach religion.
Mr. Sekulow: In this context, the way the program is implemented within that hypothetical and within the facts here, here students can take these very same courses in religion that Josh Davey...
Justice Souter: Well, that may show that the state draws a kind of a funny line.
Maybe it was a... a bad job of line drawing, and I... I have to admit, I'm not quite sure why they draw it the way they do, but on... on the... on the basic proposition that the state raises as... as its position here, that it will not fund ministerial education or education in how to be religious versus funding other kinds of training, the argument, it seems to me, from the Free Exercise Clause would be the same in the voucher case as the argument that you are making here.
Mr. Sekulow: If in fact the programs were put forward this way with the accreditation as you suggested, and there is no countervailing Establishment Clause issue and the eligibility issue of the school is met, yes, I wouldn't see the...
Justice O'Connor: All right.
Mr. Sekulow: justification to exclude a particular major here in this particular case, a submajor from a religious viewpoint.
Justice Scalia: Mr. Sekulow...
Well, how many states do that, do you know?
You're knowledgeable on these things.
How many states have voucher programs which... which would allow students to go to any private school, you know, an elite academy, but not allow them to go to religious schools?
Mr. Sekulow: Twenty-five states have voucher-type programs that have no restrictions at all as long as it's an accredited institution, so that's the... usually the standard.
They can go to any school that's accredited.
There are some states, and it's about a half-dozen, as I said, Justice Scalia, it's a little bit of a moving target because policies change, that actually have this prohibition for religious education, and even within some of those states, the programs are inconsistent.
They'll have different type of financial aid programs here.
In this particular situation, and the way this particular program is implemented, though, Joshua Davey had already made, Justice Stevens, his declaration of a major before he was notified he was disqualified.
The state didn't do the formal notification until October, some two months after he rolled... enrolled.
Justice Stevens: But I suppose he could have changed his mind and taken another major in most of the courses and then postponed that decision.
As a matter of conscience, he didn't do it.
Mr. Sekulow: It... it was a matter of conscience.
There were some students at the school that did change their mind.
There were two that did not.
Joshua Davey was one that... and the counselor, the financial aid counselor, did state in the joint appendix that she cautioned them if they are in fact going to major in a degree that would be pursuing a theology to tell the truth, which he clearly did here.
So his implementation of the decision was already made in the sense that the state came back afterwards and said oh, by the way, these group of students don't qualify for this.
Justice Kennedy: But wouldn't it be...
Am I... am I correct or incorrect that the state would fund a student who majored in literature at a institution which was sectarian and had instructors who taught literature from a religious perspective or... am I correct about that?
Justice Breyer: Yes.
Well, but the state is saying, I don't know if we can escape the broader ground, the state's saying, look, we understand that, you know, applying our standard there'll be all kinds of anomalies that you can get.
Maybe this case is one.
But what we're doing by and large is to say, we don't want to spend too much of our state money in this program, we'll do it subsidiary, you know, the odd example doesn't matter, but people who major in philosophy are likely to become priests or at least spend a lot of time studying theology.
If they major in theology, or they spend a lot of time studying theology, that's going too far.
So this is, like many administrative lines, a very crude effort to identify those people who are taking too much of their time in totally religiously-oriented matters.
Now, of course that's unconstitutional if we accept your argument that the state must treat the religious study the same way as any other.
That's your broad ground.
But if we reject the broad ground, I don't quite see at the moment how we can accept the narrow one, which turns on these details of the administrability of the line.
Mr. Sekulow: Well, the reason that I want... let me address the latter, if I might, Justice Breyer.
The reason those details matter because the line drawing albeit may be crude on the State of Washington, here is within the context of the Free Exercise Clause, because here the school is an eligible institution, so that's not even at issue.
There is no countervailing Establishment Clause issue here.
Witters foreclosed that.
So all we are dealing with is a statute which on its face states that a student who qualifies based on academic excellence and economic need makes the decision for him or herself where they're going to go to school and what they're going to major in, and they can major in literally the universe of courses.
There is only one exclusion.
It's not even, Justice Ginsburg, a situation with a number of majors.
Justice Ginsburg: Mr. Sekulow, I think that Justice Breyer is getting at the same point I tried to get at, and it's in part the other flip side of what Justice Kennedy asked you.
Certainly, you are not standing here to tell us that, oh, if they were more restrictive, if they said we're simply not going to fund scholarships to students who go to sectarian schools, that that might be all right.
I mean, you don't want to win on the ground of the school was too generous in what it did fund.
Mr. Sekulow: Well, two responses.
First, the... on the issue of the state and their obligation, to recast this as a... the state is being required to fund Joshua Davey's education, I think is... is a miscast of the issue.
The state has decided to employ, to develop a scholarship program that's very broad-based and in that program they have given the student the ultimate choice of where they could go to school as long as it's within Washington state and accredited and literally they can major in any major except for one, and that is a theology exclusion.
Justice Ginsburg: Wouldn't be any better if they said, you can go to any school except a... a church school.
Mr. Sekulow: No.
I think it would raise, if it's accredited I think it would raise the same problem.
But it's not to say that the state universities don't teach courses in theology and religion.
On pages 66 and 74 of the joint appendix, there's a listing of the courses offered at the University of Washington, and it covers a broad array of religious courses, albeit from...
Justice Kennedy: You... you don't know of any case that says that the less significant the interest the state has is the more latitude it has in discriminating against religion.
You don't know of any case that said that?
Mr. Sekulow: No.
That... that would...
Justice Souter: I hope you don't, yeah.
Mr. Sekulow: No.
And hopefully this won't be that one.
Justice Stevens: May I ask... ask you a broader question?
A number of the briefs discussed the breathing space between the Establishment Clause and the Free Exercise Clause.
Do you take the position, or just what is your position on whether or not there is such a breathing space?
Mr. Sekulow: The play in the joints as it's referred to.
Justice Breyer: Yeah.
Mr. Sekulow: I... I think the play in the joints gives the state broad flexibility in establishing the programs and... or not establishing a program at all, but to use the play in the joints to not accommodate religion but rather to target religion as an exclusion I think is a misuse in my view of what the Court has at this point...
Justice Kennedy: Give me an example, any example.
Justice Stevens: But do you go so far as to contend that any violation, any time there is no violation of the Establishment Clause that then the Free Exercise Clause would necessarily kick in?
Mr. Sekulow: No, absolutely not.
And let me...
Justice Souter: But that's what I was looking for.
Chief Justice Rehnquist: Do you want to reserve the rest of your time, Mr. Sekulow?
Mr. Sekulow: I don't have... I only have 20 minutes, so I cannot reserve any more time.
But I would normally be happy to.
Justice Ginsburg: If... if you can give me an example of a case where the state can say we know we can give this funding to religious schools if we want to, but we don't want to?
Can you give any example where that would be legitimate on your view of free exercise?
Mr. Sekulow: Sure.
There's... I don't think there is any affirmative obligation, Justice Ginsburg, for the state, even if the Establishment Clause... I'll give an example.
The Center Moriches School District in Lamb's Chapel, while this Court held that the Establishment Clause did not... required them that they open their facilities to comply with the First Amendment viewpoint neutrality issues, they're not... they were not required to open their facilities up.
The State of Washington could develop programs for specific majors.
Justice Souter: No, but if they opened it up at all, there was no play in the joints between the religion clauses that said you can't open it up to this particular religious presentation.
Isn't that correct?
Mr. Sekulow: No, I think that...
Justice Souter: So I think... let me just...
Mr. Sekulow: Please.
Justice Souter: say what I think your position is and then you... I think your position is that, although certain religious funding may not violate the Establishment Clause, it does not follow that the state must fund it.
But if the state has a general program for funding instruction, and this is religious instruction, it's got to fund religious instruction and there's no middle ground, there's no play in the joints there.
Is that correct?
Mr. Sekulow: Under the latter hypothetical, that... that would be our position, that once you have gone into the private schools and the school meets the neutral secular criteria, our view would be at that point the state should be equal and not target out religion for an exclusion, which is precisely the viewpoint neutrality issue that we think should apply and, of course, within the free exercise context, the minimum requirement of neutrality is law not discriminate on its face.
This one does.
If there are no further questions, thank you, Mr. Chief Justice.
Argument of Gen Theodore B. Olson
Chief Justice Rehnquist: Thank you, Mr. Sekulow.
General Olson, we'll hear from you.
Mr. Olson: Mr. Chief Justice, and may it please the Court:
The Promise Scholarship program practices the plainest form of religious discrimination.
It disqualifies the one course of study that is taught from a religious perspective.
The clear and unmistakable message is that religion and preparation for a career in the ministry is disfavored and discouraged.
Justice O'Connor: Well, but of course, there's been a couple of centuries of practice in this country of not funding religious instruction by tax money.
I mean, that's... that's as old as the country itself, isn't it?
Mr. Olson: Well, yes, it is.
But there is the other tradition that is as old as the country itself, is the free exercise component of the religion clauses, which this Court has said repeatedly mandates neutrality.
Justice Stevens: But how is his free exercise chilled at all?
Can't he practice his religion just as he always would and become a minister?
Mr. Olson: Well, it's...
Justice Stevens: He just has to pay for it.
Mr. Olson: Justice... well, Justice Stevens, the individual that was disqualified in Tennessee from being a member of a delegate to the Constitutional Convention because he was a minister...
Justice Stevens: He was prohibited from doing something every other citizen can do.
Mr. Olson: Well, the same... the Court would have come out the same way, I submit, if it said that ministers will not have their expenses paid, but everybody else will.
The language of the decision and the language of Sherbert v. Verner and Fowler v. Rhode Island is that to the extent that a religion...
Justice Stevens: But you're still not addressing the question of how his... his freedom to practice the religion he wants to practice is impaired at all.
Mr. Olson: Well, he can practice it, but he practices it at a price.
Studying of theology as the...
Justice Stevens: He practices it without a subsidy.
Mr. Olson: He practices it without the same subsidy that is made available to every other citizen except someone who wants to study to be a minister.
If it was discrimination against a minister in... in the... in the case involving Tennessee, this is a discrimination against a person who aspires to be a minister.
He is given less of an advantage than all...
Justice Scalia: If it... if it... if it isn't coercion of... of his religion, I suppose it would be okay to limit this... this exclusion to Jewish theology or to Catholic theology, because the response would be it doesn't... it doesn't coerce his religion at all.
Mr. Olson: We submit that the teachings of the decision of this Court...
Justice Stevens: But isn't the difference that that would plainly violate the Establishment Clause, and here we have a Free Exercise Clause issue.
Mr. Olson: What this Court has said, Justice Stevens, is that in... in many respects the Establishment Clause and the Free Exercise Clause are components of the same principle that is...
Justice Stevens: So you take the position there's no breathing space between the two?
Mr. Olson: Well, there is... there may be breathing space, especially with respect to the Establishment Clause area, where this Court will not find entanglement or endorsement under certain programs that may not be required, but what this Court has said is that distinguishing... that discriminating against Catholics and discriminating against people who are religious generally and even people who are anti-religious generally violates the twin components of equality and neutrality that are... that are mandated by the religion clauses.
Justice Breyer: What... what is your response to the following concern that's been brought up a few times but I'd like you to address it directly.
This case is perhaps a small matter of a distinction that doesn't make all that much sense, but makes some.
But the implications of this case are breathtaking, that it would mean if your side wins, that every program, not just educational programs, but nursing programs, hospital programs, social welfare programs, contracting programs throughout the governments would go over, you'd have to go over each of them and there'd be a claim in each instance that they cannot be purely secular, that they must fund all religions who want to do the same thing, and that those religions, by the way, though it may be an excellent principle, may get into fights with each other about billions and billions of dollars, so... which is something about which I have written about, which you know.
So, I'd like you to address that.
Mr. Olson: Yes, Justice Breyer.
It is not a major step at all in this Court's jurisprudence to say that those funding programs for medicine, doctors, nurses, cannot distinguish and not discriminate against a person who decides to go to a Catholic nurse or to a Catholic doctor.
If money is made available for individuals in the Medicare program to exclude people that want to go to religious hospitals for their heart surgery, that would violate the Free Exercise Clause.
Justice Kennedy: So do you agree, do you take the position that if we affirm the court of appeals and accept your position, that the Court is committed on the school voucher issue if, say, a school voucher program excludes parochial schools?
Mr. Olson: It would depend, I suppose, on how the program was structured, what the inquiry involving a compelling government... strict scrutiny would entail.
There may be a difference, for example, with respect to funding that's associated with institutions, as opposed to individual conscience.
This is the plainest form of religious discrimination because the person who wants to believe in God or wants to have a position of religious leadership is the one that's singled out for discriminatory treatment.
The Court has said before that distinction, religious tests for governmental benefits violate the Free Exercise Clause.
This is a religious test.
If the person wants to take a program in theology, he's disqualified.
Justice Souter: What are the practical implications?
Justice Breyer: May I ask you...
Just want a sentence on the practical implication.
Is it as far-reaching as my tone of voice suggested?
Mr. Olson: I would say that the... it is not as far-reaching as the... the sense of doom that your question suggested.
Justice Breyer: Maybe a good thing I'm not... don't...
Mr. Olson: The idea that this country when it... when it provides tax exemptions or cash to citizens to educate their children, cannot single out for discriminatory treatment the Catholic or the religious person is not a far-reaching... well, it may have been far-reaching at the time, and thank heavens that it is, that this principle as the... I think one of the questions, I think it was Justice O'Connor's question, asked with respect to the funding cases and this Court dealt specifically with that in the Maher v. Roe case when it said the funding cases do not control the significantly different context in which a funding decision impinges upon the constitutionally-imposed government obligation of neutrality required by the religion clauses.
So those funding cases are completely distinguishable...
Justice Souter: General, may I ask you this question?
I mean, the whole argument for neutrality comes down to an argument, I think, about the following.
Mr. Olson: About...
Justice Souter: About the following distinction.
The other side says, Washington says, look, there is a line to be drawn, not between funding Catholics and Protestants or atheists or what-not.
The line to be drawn is the line between funding education about a religion, education that says this is what Catholics believe, this is what atheists believe, and on the other hand, education that says, this belief is valid, and you ought to go out and persuade other people to hold this belief.
They say, that is the distinction we are trying to draw.
Why is that distinction invalid under a neutrality criteria?
Mr. Olson: For the reason that the same argument was rejected in the Rosenberger case, that the notion of...
Justice Souter: But Rosenberger was not said... the opinion in Rosenberger said these people are not proselytizing.
And... and the distinction that they are drawing is a distinction between believing in proselytizing on the one hand, how to do it, why it's valid, and instruction on what people believe as a fact on the other.
And I... Rosenberger is an authority for... for the rejection of that distinction.
Mr. Olson: I... I respectfully submit that it is, that the students in the Rosenberger that were publishing those articles were publishing articles that advocated belief in God.
Justice Souter: Oh, look, you're writing my dissent.
I... I agree, but my... my...
Mr. Sekulow: [Laughter]
Mr. Olson: That was...
Justice Souter: I... I couldn't... I couldn't get four colleagues to agree with me on that, and they went off on... on another... another course.
Mr. Olson: Yeah, but the Court went on to say that this was a free exercise violation as well as a First Amendment violation.
The other point that I think is very, very important with respect to that, if the state starts to distinguishing between discussion of a subject and proselytizing, the entanglement problem is going to be enormous.
The program will have to be looked at to see how persuasive it is.
We know today that...
Justice Souter: If that argument is good, why do we even bother with the... the criterion of direct funding of religion?
Mr. Olson: Well, because...
Justice Souter: Because we... we could have drawn the line there.
Mr. Olson: No, because the line has been drawn by individuals, individuals making genuinely free, independent choices to make a dispensation.
It's like the Court's example in those cases of an individual receiving a check and then deciding exactly how to spend it so there's a great difference between those kind of cases.
This is no different than the example that Justice Scalia raised as providing fire protection or... or providing tax deductions.
Rebuttal of Narda Pierce
Chief Justice Rehnquist: Thank you, General Olson.
Ms. Pierce, you have three minutes remaining.
Ms Pierce: I would like to return to three points.
One, on the statute that says no aid shall be awarded to a student pursuing a degree in theology.
A question was asked saying that for administrative ease the state uses this legislative approach, their constitutional command.
But it's not just administrative ease.
I think it's a question of entanglement.
Should the state be involved in a class-by-class assessment of whether it... it individually, it should be categorized as religious instruction or not.
Justice Kennedy: But we've held in Witters that there is no problem with that... with that kind... with that kind of subsidy.
Ms Pierce: For purposes of the Establishment Clause.
And I just wanted to point out that our state supreme court has questioned in a dissent in the Gallway v. Grimm case, some justices of our state supreme court have asked, is focusing on the degree program sufficient for our state constitution?
But we believe there are good reasons for it that's not yet been addressed by our court, and that's to avoid that kind of class-by-class determination, not necessary in Witters because there the focus is, does the Establishment Clause... is it violated by government endorsement?
But Washington does take a different approach to both prongs, both twin prongs of religious freedom, and this is my second point.
For purposes of funding, it looks beyond government endorsement and looks to the freedom of conscience in religious matters of a broader range of citizens, including citizens who may not want to have their compelled tax payments used for religious instruction.
So it's the same principle.
It doesn't become hostility to religion just because it extends that one principle beyond what the Establishment Clause requires.
On the other hand, the State of Washington also puts greater restrictions on government where their regulations may impact someone's free exercise of their religion so that unless a state... the state can show a substantial need, certain regulatory laws cannot be applied in a fashion that burdened the free exercise.
The Munns v. Martin case is a classic example that we have cited to the Court.
It's a case where historic landmark laws could not prevent a church from building a pastoral center because the historic landmark laws were deemed not to be substantially needed by the state to protect the public.
So we do think there is wide latitude, and my final point, Mr. Chief Justice, is that this Court has accorded the states wide latitude in funding decisions for the states to make their own policy judgments.
Here, all the state has done has been to decline to fund religious instruction wherever it occurs, including in a theology degree program.
We have not overstepped our bounds by imposing an unconstitutional condition on Mr. Davey as a recipient.
In the overall picture, we're not suppressing...
Justice Scalia: It... it... it will fund religious instruction.
So long as he doesn't major in theology, he can take the same courses and get... get instructed in religion, can't he?
Ms Pierce: Yes, Scalia, that...
Justice Scalia: So what you say is just not true?
Ms Pierce: Yes, Justice... well, that can happen in a rare circumstance.
We believe that there's a good reason to use that...
Justice Scalia: Everybody who takes a theology course has to major in theology?
I don't think it's rare at all.
Probably most of the students at Northwest College take theology courses.
It's... it's a religious institution, and that's perfectly okay, and the state is willing to fund that.
Ms Pierce: That's what the statute permits now.
Some justices of our state supreme court have expressed the same question whether that is possible.
Thank you, Mr....
Chief Justice Rehnquist: Thank you, Ms. Pierce.
The case is submitted.
Argument of Chief Justice Rehnquist
Mr. Sekulow: I have the opinion of the Court to announce in two cases: the first is 02-1315, Locke versus Davey.
The State of Washington established the Promise Scholarship Program to assist academically gifted students with postsecondary education expenses.
In accordance with the state constitution, Promise Scholars may not use the scholarship in an institution where they are pursuing a degree in devotional theology.
Respondent was awarded a Promise Scholarship and chose to attend Northwest College, a private Christian college in the State.
Although Northwest is an eligible institution, respondent was unable to use his scholarship there because he chose to major in pastoral ministries which is a devotional degree.
He brought an action under Section of 1983 arguing that the denial of his scholarship based on his pursuit of a devotional degree violated, among other things, the First Amendment’s Free Exercise Clause.
The District Court denied him relief but a divided panel of the Court of Appeals for the Ninth Circuit reversed.
We granted certiorari and we now reverse.
This case involves the play in the joints between the Establishment Clause and the Free Exercise Clause.
Under our Establishment Clause precedent there is no doubt that the state could, consistent with the federal constitution, permit Promise Scholars to pursue a degree in devotional theology.
The question before us however, is whether Washington, pursuant to his own constitution, can deny them such fundign without violating the Free Exercise Clause.
The respondent argues that the State’s program is presumptively unconstitutional because the State draws a distinction based on religion.
In the present case however, the State is merely chosen not to fund a distinct category of instruction, training for religious professions and training for secular professions are not fungible.
Training someone to lead a congregation is not essentially a religious endeavor.
In the subject of religion is one which both the United States and State Constitutions embody distinct views in favor of free exercise but opposed to establishment.
They find no counterpart with respect to other callings or profession that a state would deal differently with religious education for the ministry than with education for other callings is a product of these views, not evidence of hostility toward religion.
Such a distinction has long existed in our history.
Far from advancing hostility toward religion, the Promise Scholarship Program goes a long way towards including religion in its benefit.
The program permits students to attend pervasively religious schools so long as they are credited, and under the Promise Scholarship Program’s current guidelines, students are still eligible to take devotional theology courses.
In short, nothing in the history or text of the Washington Constitution nor in the operation of the Promise Scholarship Program suggest animus towards religion.
Given the historic and substantial state interest at issue, we therefore cannot conclude that the denial of funding for vocational religious instruction alone is constitutionally suspected.
Without a presumption of unconstitutionality, Davey’s claim must fail.
The State’s interest in not funding the pursuit of devotional degrees is substantial and the exclusion of such funding places a relatively minor burden on Promise Scholar.
If any room exists between the two religion clauses, it surely must be here.
The judgment of the Court of Appeals is reversed.
Justice Scalia has filed a dissenting opinion in which Justice Thomas has joined; Justice Thomas has filed a dissenting opinion.