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Justices Again Asked to Draw Church-State Line

If government aid goes to private education, it must also go to religious schools, activists say.

May 19, 2003|David G. Savage | Times Staff Writer

WASHINGTON — If states pay for scholarships, textbooks and other types of aid that benefit private secular schools, does the U.S. Constitution require them to do the same for church-related or religious schools?

That question is before the Supreme Court in the latest twist in the long debate over religion and its relationship with the government.

Last year, the high court said states may use taxpayers' money to pay for children to go to church-related schools. The 5-4 ruling upheld a voucher program in Ohio that gives low-income parents a stipend that they can use to send their child to a church-related school. The flow of public money to a parochial school did not violate the 1st Amendment's ban on an "establishment of religion," the court ruled.

Now, religious-rights advocates and voucher proponents are urging the justices to go a step further and rule that if states are supporting nonreligious private schools through scholarships, tuition aid or other means, they must also cover costs for those at religious schools.

The justices met last week to consider raising the issue and are likely to announce today whether they will hear the appeal.

To single out religious schools for exclusion violates the 1st Amendment's ban on the "free exercise of religion," religious rights lawyers say.

This claim runs squarely into the constitutions in 36 states, including California, that specifically forbid the use of public money for "sectarian" schools.

In the past, the California courts have struck down state programs that gave textbooks to students attending parochial schools on the grounds that the aid for religious instruction violated the state constitution.

But last year, the U.S. 9th Circuit Court of Appeals, in a 2-1 decision, suggested that these state restrictions on public aid for religious schools violate the 1st Amendment's guarantee of "free exercise" of religion.

Voucher advocates say striking down these bans will remove a legal barrier to statewide "school choice" programs that support students who go to religious schools.

UC Berkeley law professor Jesse H. Choper, an expert on the religious clauses of the Constitution, said the justices have not interpreted the guarantee of "free exercise" of religion as a guarantee of public support for religion. "It would be a big step" if they did, he said.

Moreover, such a ruling could boost President Bush's "faith-based initiative." Bush has argued that when the government provides social support services -- whether for prisoners, drug addicts, alcoholics or pregnant teenagers -- it should include churches and faith-based programs.

The case arose in 1999, when the Legislature in Washington state offered "Promise Scholarships" to top high school graduates from low-income families.

Joshua Davey qualified for a scholarship and said he planned to study "pastoral ministries" at a small college run by the Assemblies of God. His aim was to become a minister, he said.

State officials, pointing to Washington's Constitution, said students studying theology did not qualify for this public aid.

"Absolute freedom of conscience in all matters of religious sentiment, belief and worship, shall be guaranteed to every individual," it says. However, "no public money or property shall be appropriated for or applied to any religious worship, exercise or instruction."

Lawyers for the American Center on Law & Justice, a conservative religious-rights group based in Virginia Beach, Va., sued in federal court on Davey's behalf.

While a judge in Seattle sided with the state, the 9th Circuit in San Francisco ruled for Davey.

The state's funding law "discriminates on the basis of religion" and violates the U.S. Constitution, said Judge Pamela Ann Rymer, an appointee of the elder President Bush.

The ruling came a month after the Supreme Court upheld the vouchers program in Ohio.

In dissent, Judge M. Margaret McKeown, an appointee of President Clinton, said the 1st Amendment's guarantee of "free exercise" of religion means the government may not "suppress religion," but need not support it either.

In February, Washington Gov. Gary Locke appealed the issue to the U.S. Supreme Court, asking whether the Constitution "requires the state to fund religious instruction."

"This poses a classic conflict for us," said assistant state Atty. Gen. William B. Collins.

While the Washington Supreme Court has said the state may not give public money to students to study religion, the 9th Circuit says the state must do so. If the justices reject the appeal in Locke vs. Davey, the 9th Circuit's ruling will stand as the law in the Western states, including California.

Lawyers for the Becket Fund for Religious Liberty and the Institute for Justice, a libertarian group that has championed vouchers, hope the court will take the case and issue a ruling that voids the state constitutional bans on aid for religion.

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