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 (search) to lose the Promise Scholarship he was awarded by the state of Washington.
The scholarship was rescinded after Davey declared his major because state officials deemed it an unconstitutional blending of church and state.
"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 during a lively hourlong argument session. "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 and that states have considerable leeway in choosing how to spend money.
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.
That "sense of doom" is unwarranted, Olson assured Breyer.
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 did 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 (search).
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. Bans on public funds for religious education, often known as Blaine amendments, date to the 19th century when anti-Catholic sentiment ran high.
The latest case is in many ways the flip side of the voucher argument. It asks not whether governments can use tax money to underwrite religious education, as the voucher question did. Instead, the Davey case asks whether, when money is available, it must be available for religious and secular studies alike.
The case also is considered a bellwether for what Bush calls his faith-based initiative. The plan, which is stalled in Congress, would let more religious groups compete for government money for things like social services, so long as their services are available to anybody in need. Opponents fear the government would wind up underwriting religious proselytizing.
A Supreme Court ruling in Davey's favor could place the White House program on firmer legal footing.
The case is Locke v. Davey, 02-1315.