Matter of Free Exercise?

This is a partial transcript of Special Report with Brit Hume, December 2, that has been edited for clarity.

Watch Special Report With Brit Hume weeknights at 6 p.m. ET

BRIT HUME, HOST: The Supreme Court today heard argument in the case of a student who was denied a Washington State scholarship because of his chosen course of study. Joshua Davey (search) wanted to study theology from a religious point of view.

Fox News correspondent Brian Wilson has the story.

(BEGIN VIDEOTAPE)

BRIAN WILSON, FOX NEWS CORRESPONDENT: This case revolves around Northwest College student Joshua Davey whose merit scholarship was revoked by Washington State officials after he declared pastoral ministries to be one of his majors.

JAY SEKULOW, PLAINTIFF'S ATTORNEY: Josh Davey met the qualifications for the scholarship. The only basis upon which he was denied those funds was he was pursue ago degree in theology, taught from a religious perspective.

WILSON: Davey believes Washington State engaged in a form of religious discrimination. But state officials argue they were only following the state's constitution.

NARDA PIERCE, SOLICITOR GENERAL, WASHINGTON: One, we declined to fund religious instruction using public moneys in order to protect all citizens' freedom of conscience. And two, we are prohibited from imposing regulatory restrictions that is going to impact someone's Free Exercise, unless we have a compelling reason.

WILSON: The High Court seemed deeply divided on the case. Justice Antonin Scalia (search) wondered allowed that if treating religion differently from non-religion violates the constitutional principle of neutrality. Justice David Souter (search) at one point seemed to be defending the position of Washington State. "A line has been drawn," he said, "between funding education about a religion and funding education that says this belief is valid, and you ought to go out and persuade others to hold that belief." And Justice Stephen Breyer (search) observed, "The implications of this case are breathtaking."

That's because some believe a sweeping decision by the High Court might knock a few bricks out of what some people say is a legal wall that currently separates church and state. One area of particular interest to the Bush administration is the idea of allowing parents to use government vouchers to fund K-12 education at religious-based private schools.

Joshua Davey was in attendance for today's Supreme Court session. He is no longer pursuing a life in the ministry, but the case has apparently had a big impact on him. He is now enrolled in Harvard Law School.

JOSHUSA DAVEY, PLAINTIFF: This is about a case about discrimination and fairness and equal justice under the law.

WILSON: This case came through that controversial San Francisco-based Ninth Circuit Court of Appeals, the same court that ruled the phrase, "under God" in the Pledge of Allegiance is unconstitutional. But in this particular case, the court sided with Joshua Davey.

Here at the Supreme Court, it seems likely, as is often the case, that Justice Sandra Day O'Connor (search) will be the deciding swing vote.

In Washington, Brian Wilson, Fox News.

(END VIDEOTAPE)

HUME: So, did Joshua Davey lose his scholarship because at the time he wanted to become a minister? Would it have made any difference if he wanted to study theology so that he could teach religion in college, but not the pulpits?

For answers, we turn to our favorite law professor, Jonathan Turley of George Washington University. Welcome back.

JONATHAN TURLEY, PROFESSOR, GEORGE WASHINGTON UNIVERSITY: Thank you, Brit.

HUME: So, once the Supreme Court has accepted this case, it is saying that this is about the First Amendment to the U.S. Constitution.

TURLEY: Right. I mean, this is turning...

HUME: Which means the state says it is acting under its own constitution, that is not -- does that -- is that now irrelevant?

TURLEY: No, it's not irrelevant. It depends on how the Supreme Court now defines the scope of the U.S. Constitution. If the Court finds that Mr. Davey is entitled to this subsidy as a matter of Free Exercise, then that trumps all...

HUME: Matter of Free Exercise of religion?

TURLEY: That's right. It's part of the Free Exercise Clause.

HUME: Now the Free Exercise Clause of religion means you are entitled to believe whatever you want, worship whatever God you want in whatever way you want. But it does not guarantee that the state will subsidize that. In fact, it says that the state will not establish any religion as an official religion nor do anything that tends to do that, correct?

TURLEY: That's right. Under the Constitution, the framers prohibited the government from establishing a formal religion, and also guaranteed that people would be able to Free Exercise in terms of their religious beliefs.

HUME: Is that what Scalia means when he says there's "a principle of neutrality?"

TURLEY: Well, the court recently has been refashioning its jurisprudence in this area. It has allowed, to a greater extent, for states to fund programs through thing like vouchers. It has made a very significant change in the last 10, 15 years.

This is the flipside. Although those prior cases involved states who said we want to be able, through voucher programs, to give money, even if they go to religious schools, and the Supreme Court said as long as your program is neutral, as long as it leaves it up to the parents to give those vouchers...

HUME: So in other words, is it the school ... or the course of study is chosen by the student and his family and not by the state, it's OK?

TURLEY: That's right. But now this is the flipside. The question is, can a reluctant state or opposed state, a state that says we don't want any money to go to religious programs, whether they can be effectively forced to do so, whether the Constitution requires them to essentially subsidize. So, the case couldn't be more interesting in terms of a collision of different principles.

HUME: All of them embodied in the First Amendment to the Constitution, right?

TURLEY: That's right. But also there is a federalism principle. That's what makes this awkward for the Bush administration.

HUME: Federalism being letting the state do as they wish...

TURLEY: That's right.

HUME: ... independent to the states.

TURLEY: What Washington is arguing is that we should be allowed to go our own way, that we're not prohibiting anyone from exercising their own religion, we're not prohibiting anyone from pursuing this type of degree. What we're saying is we don't want to fund these types of programs.

HUME: Now, is it written in that scholarship program by the state of Washington's legislature that the money should not go to these purposes?

TURLEY: It is part of their constitution...

HUME: I see. In other words, it doesn't need to be written in there. It is part of the core law of the state of Washington?

TURLEY: That's right. But there's...

HUME: Now, question. Did the scholarship; it was a merit scholarship, correct? It was not awarded to Joshua Davey on the basis of his chosen field of endeavor. But it was done by his grades or merit or need, correct?

TURLEY: Right.

HUME: So, what happened is the state only intervened when it turned out he was going to study religion with an eye to becoming a minister?

TURLEY: Absolutely. And part of what's triggered here is what's called the Blaine Amendment; and this is going to color this entire case. The Blaine Amendments were named after a Maine Congressman who was extremely anti-Catholic. And these amendments spread throughout the country as an anti-Catholic...

HUME: These our state-level amendments?

TURLEY: That's right. Anti-Catholic effort to prevent funding of Catholic schools. So, this is a rather interesting case in that the Bush administration is being accused of not being supportive of state rights. And liberals are supporting the Blaine Amendment, which has been a scourge of anti-Catholicism. So, both sides are rather strange bedfellows in this case.

HUME: How do you think this is going to come out?

TURLEY: Boy, Brit. I wish I knew. This is -- for professors who come to these races and watch cars crash, this will satisfy every desire. This is going to be a very close question. Both Kennedy and O'Connor seemed to be flipping. O'Connor seemed to be slightly favoring the state. But Kennedy came out and seemed to be supporting Davey. But his major concern is when he asked Davey's attorney where's the limitation? If you combine this with a voucher's case, where can it stop? Is this going to require the funding of any and all religious, you know, programs? So, Kennedy seems to be concerned as well. So I don't think that you can call this one the two-key flip votes, the swing votes, seem to be of divided mind here.

HUME: Now, but it wouldn't have made any difference, I take it, if he had said if his intend had been to study religion to teach it, that the state by its own declaration has indicated that -- that would -- it would have been OK?

TURLEY: That's right. It is the act of religious component. And what's interesting is that both Scalia and Breyer have children in the ministry. And so, there is an added interesting familiar dimension to this.

HUME: Jonathan Turley, for once, you don't know the answer.

TURLEY: Oh, I'm proud to say that on this occasion.

HUME: All right. Great to see you.

TURLEY: Thanks, Brit.

HUME: Thank you.

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