WASHINGTON — The Supreme Court, obviously divided, argued Tuesday over whether the Constitution sometimes requires the government to use tax money to help pay for the training of religious clergy, even when taxpayers oppose the idea.
It "is the plainest form of religious discrimination" to deny a state scholarship to a college student who is studying to become a minister, Solicitor Gen. Theodore B. Olson, arguing for the Bush administration, said.
He was joined by Jay Alan Sekulow, a lawyer for the American Center for Law and Justice, who argued the state "must not target religion for exclusion." They were speaking for Joshua Davey, a student who won a Washington state scholarship and chose to attend Northwest College in Kirkland, which is affiliated with the Assemblies of God. When Davey said he would major in theology and become a minister, state officials told him they were withdrawing the scholarship, because state law forbids public funding of religious instruction.
But it was clear Tuesday the justices knew the case of Locke vs. Davey was far larger than a dispute about a scholarship.
"The implications of this case are breathtaking," said Justice Stephen G. Breyer. If the court says it is discriminating against religion whenever the government refuses to fund a church-affiliated program, the government will have to fund religion in all kinds of ways, he said.
Justice Sandra Day O'Connor, the swing vote in most close cases, appeared to agree. There are "a couple of centuries of practice in this country of not funding religious institutions with tax money," she said. "What you are urging would have a major impact," she told Sekulow. For example, whenever states offer tuition vouchers to students who attend private secular schools, they would be required to also give the money to students in church-related schools, she said.
Sekulow agreed. "I don't see a justification for excluding religious schools," he said.
Over time, the the court has struggled with the sometimes-conflicting provisions of the 1st Amendment. One says the government may make "no laws respecting an establishment of religion." The other says the government may not prohibit "the free exercise" of religion.
Washington state, like 35 others, has a stricter ban on funding religion in its Constitution.
