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.
"The people [of the state] decided not to use public funds for the realm of faith and belief," said Narda Pierce, the state's solicitor general. And preparing for the ministry "is inherently religious," she said. "There is no evidence in Washington's history of an anti-Catholic bias."
Pierce was referring to a fierce dispute among historians over whether the 19th century bans on tax funding for religious schools stemmed from Protestant bias against immigrant Catholics.
In 1875, James G. Blaine, speaker of the House and a Republican candidate for president, failed to get an amendment to the U.S. Constitution to outlaw public funding for religious institutions. Blaine is best known for his unsuccessful 1884 campaign for the White House and a supporter's ill-timed comment that the Democrats were the party of "rum, Romanism and rebellion." But his support for the religion funding ban encouraged states to adopt similar provisions in their constitutions.
This year, several religious-rights groups, including the Catholic League for Religious and Civil Rights and the Beckett Fund for Religious Liberty, urged the Supreme Court to strike down these bans in the Washington state case because they arose from "nativism and anti-Catholicism." That message is likely to resonate with several justices. Two years ago, Justice Clarence Thomas wrote an opinion upholding federal aid for buying computers in parochial schools and commented that the Blaine amendments were "born of bigotry" toward Catholics. His opinion spoke for Chief Justices William H. Rehnquist and Justices Antonin Scalia and Anthony M. Kennedy.
Based on past rulings and comments Tuesday, all four are likely to side with Davey and vote to strike down Washington's restriction.
Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Breyer adhere to the principle of church-state separation, and sounded inclined to uphold the state's action. O'Connor indicated that she might side with them.
In another set of legal briefs, liberal groups point to America's Colonial era. Then, Thomas Jefferson and James Madison sponsored Virginia's law on religious freedom in 1786 with the goal of shielding taxpayers from supporting the clergy.
"To compel a man to furnish contributions of money for the propagation of opinions which he disbelieves is sinful and tyrannical," Jefferson wrote. His comments were cited by lawyers for the ACLU, People for the American Way and others urging the court to uphold the principle of separation of church and state.
The justices are expected to rule in the first half of 2004. The legal dispute has changed Davey's life. Upon graduation, the aspiring minister enrolled in Harvard Law School, now determined to become an attorney. And this fall, he said he had the experience of going to a constitutional law class where the professor and students debated the case of Locke vs. Davey.