Dahlia Lithwick has a well-written and engrossing summary of the oral argument at the Supreme Court Tuesday morning in the case of Locke v. Davey.
Joshua Davey was given a Promise Scholarship by the state of Washington, but it was rescinded after the state learned that he intended to pursue a double-major in Business Management and Pastoral Studies. The state claimed that it was barred by the state constitution from spending money to train someone for the ministry. Davey sued, and the Ninth Circuit opinion in his favor is being reviewed by the Supremes. (Go here for a summary and materials on this case.)
The Court’s church-state jurisprudence is a doctrinal morass, full of “three-pronged tests,” separation anxiety regarding the metaphorical “wall” that is always either crumbling or too high, and continual stumbling as the justices trip over each other trying to tread the narrow path between establishing religion, on the one hand, and interfering with the free exercise of it, on the other.
Lithwick does a creditable job of describing the perennial tension between establishment and free exercise, although she might have offered some comment about why the issue in this case was not effectively settled by an earlier case, also from Washington state, Witters v. Wash. Dept. of Services for Blind, 474 U.S. 481 (1986). In that case a unanimous (or virtually unanimous) Supreme Court held that it did not violate the Establishment Clause for the state of Washington to permit a blind student to use a vocational rehabilitation grant to study for the ministry. I believe (but I haven’t verified this) that veterans have also been allowed to use their G.I. Bill benefits to attend seminaries.
Washington, of course, argues that the fact that the U.S. Constitution permits it to offer such aid does not mean that its own stricter state constitutional provision allows it to. Davey, in turn, argues that allowing the state to bar aid for training for the ministry when it allows aid for every other occupation amounts to pure discrimination against religion. Justice Scalia agrees, arguing, as Lithwick notes, “that if the state can constitutionally discriminate against all religious study, it could constitutionally discriminate only against, say, Jewish studies.”
Lithwick’s summary of the argument was, not to coin a phrase, generally fair and balanced, but when she offered her own views in the last paragraph she suddenly morphed into a sputtering character right out of Looney Tunes:
There is a doctrinal tension built into the long tradition of walling off church from state, and also in the claim that this wall evinces no hostility toward the church. Of course chasing religion from the public square is hostile. The point is that it’s the only means of avoiding a theocracy. The Rehnquist court has made its name by slowly chipping away at this wall. The good news for them: This case affords them a chance to do away with that messy tension once and for all. The bad news for the rest of us? The only way to do so will be to get rid of the wall altogether.
A theocracy is direct rule by religious authorities. Ms. Lithwick’s fear that theocracy will flow from allowing such things as permitting families to use vouchers to attend religious schools as well as secular ones; allowing assistance to poor students for such things as hearing aids to go to students in religious as well as secular schools; allowing religious groups the same freedom to use university facilities as secular, political groups; recognizing that the content of religious speech should be as free from government regulation as political speech; etc., etc., … her fear, in short, that treating religion with equal respect, and giving it equal protection, will lead to “theocracy” borders on the bizarre.
In my opinion there is no reasonable, logical, Constitutional alternative to treating religion neutrally. Religion should be the basis for neither benefits nor burdens. Just like race, and for many of the same reasons.
UPDATE – For additional comments in a similar vein (but that are too polite to suggest that Ms. Lithwick is impersonating a character out of Looney Tunes), see Eugene Volokh, Professor Bainbridge, and the Curmudeonly Clerk.