Supreme Victory

High Court Thwarts Religious Right Scheme To Require State Funding For Religion

Religious Right legal strategist Jay Sekulow called it "one of the MOST IMPORTANT RELIGION CASES OF OUR TIME to go before the Supreme Court of the United States!"

The case that got Sekulow so excited was a dispute from Washington State known as Locke v. Davey. When the Supreme Court announced last year that it would hear the case, Sekulow, chief attorney for TV preacher Pat Robertson's American Center for Law and Justice (ACLJ), got so excited he couldn't refrain from writing to his donors in capital letters.

Sekulow pleaded for funds to support the legal effort in an Aug. 15, 2003, e-mail appeal.

"The outcome of this case will make an impact on virtually EVERY religious liberty issue we are involved with!" he wrote. "RELIGIOUS FREEDOM WILL BE PROTECTED LIKE NEVER BEFORE!"

Sekulow noted that "opponents of faith" including Americans United for Separation of Church and State and the American Civil Liberties Union were opposing him in the courts.

"They are determined to DEFEND the anti-faith policies of public institutions across the country!" he bellowed.

Readers of Sekulow's missive could be forgiven for assuming that the very fate of religious freedom in America hung in the balance. In fact, the reality of the Davey case was quite different: It was an effort to force Washington State to pay for the pastoral degree of a young Bible college student named Joshua Davey. According to Sekulow's reasoning, Davey's "religious freedom" would not be secure until Washington taxpayers picked up the tab for his ministerial education.

Davey had won a scholarship from the state, but officials told him he could not use it to become a minister. Washing­ton's Constitution, they said, erects a higher wall of church-state separation than the federal Constitution and does not allow for taxpayer-subsidized ministerial degrees.

Sensing yet another opportunity to bash the church-state wall, Sekulow and the ACLJ quickly cried discrimination and filed suit in federal court. All seemed to go well at first. A federal appeals court ruled that state officials discriminated against Davey by denying him the scholarship. When the U.S. Supreme Court announced it would review the matter, Sekulow wasn't the only one who got excited.

Groups that oppose church-state separation lined up to file legal briefs and promptly mailed out hyperbolic fund-raising letters highlighting their latest assault on Thomas Jefferson's church-state wall. The Bush administration jumped on the bandwagon with its own pro-Davey briefs and later intervened in the case more directly to help shape the argument.

At the same time, groups that support the wall, including Americans United, pledged to mount a vigorous defense. The stage was set for a legal showdown of biblical proportions.

Bursting with confidence, opponents of church-state separation seemed to relish the fight. TV preacher Robertson glee­fully announced that Sekulow would personally argue the case.

"Jay Sekulow has argued nearly as many cases before the Supreme Court as Thurgood Marshall," Robertson bragged on the May 29, 2003, edition of his "700 Club" program. "It's like watching Hank Aaron."

But on Feb. 25, the Religious Right's grand scheme to usher in mandatory taxpayer-funded religious education abruptly collapsed. The Supreme Court, by a lopsided 7-2 margin, ruled that states have the right to deny public support for ministerial students like Davey. The ACLJ's Hank Aaron had struck out.

The high court's ruling in Davey was surprising for many reasons. To begin with, the justices disposed of the case very quickly. Oral arguments were heard on Dec. 2, and less than three months later the decision was made public. Controversial rulings are usually held until the end of the term in June, so this indicates that Davey just wasn't controversial among the justices.

The 7-2 ruling was also a surprise. Advocates of church-state separation had expected a much closer decision, looking at Justices Sandra Day O'Connor and Anthony M. Kennedy as potential swing votes.

Not only did O'Connor and Kennedy rule in favor of church-state separation, but so did a most unlikely candidate: Chief Justice William H. Rehnquist. Rehnquist is normally no friend of separation, but he not only joined the majority, he wrote the opinion.

"Training someone to lead a congregation is an essentially religious endeavor," observed Rehnquist, in the pithy 12-page ruling. "Indeed, majoring in devotional theology is akin to a religious calling as well as an academic pursuit."

Rehnquist noted that opposition to taxpayer funding of religion was so widespread in the colonial era that it occasionally led to popular uprisings. Most early state constitutions, he noted, barred tax support for religion. This history, he reasoned, is compelling proof that states have a vested interest in protecting taxpayers from mandatory support for religion.

The majority opinion brought a screeching halt to the right wing's dreams of required taxpayer-support of religion in the United States. It was a dream that died hard after a lot of time and energy had been spent bringing it to fruition.

In the late 1990s, attorneys at conservative legal groups filed a slew of cases attacking the state constitutional provisions barring tax aid to church schools and other religious institutions. (Such provisions exist in 37 state constitutions.) They had an ambitious plan: By arguing that the state provisions discriminated against religion, they hoped to win a definitive ruling from the high court stating that the government's failure to subsidize religious education is a violation of religious freedom and a form of unconstitutional discrimination.

Robertson's ACLJ led the attack, but other groups launched parallel efforts or worked behind the scenes among them the Alliance Defense Fund, the Becket Fund for Religious Liberty and the pro-voucher, libertarian-oriented Institute for Justice. Had they won in Davey, these organizations planned to press the victory to the limit by insisting that states fund vouchers for private religious schools and subsidize religion in many other ways.

Ultimately, these groups be­lieved, if the government was providing a secular public service, it should also be required to pay for religious alternatives. To do otherwise, they insisted, would be discrimination.

The Bush administration was quick to back the Religious Right. When the Davey case reached the justices for oral argument Dec. 2, Bush took the unusual step of dispatching Soli­citor General Theodore B. Olson to the high court to argue the case alongside Sekulow.

It was an ambitious goal perhaps too ambitious. During oral arguments at the Supreme Court, it was apparent that the right wing might have overplayed its hand. Several justices appeared to be uncomfortable with the scope of the argument offered by Sekulow and Olson.

Asked by Justice O'Con­nor if a ruling in favor of Davey would require the government to fund religion in other contexts, Sekulow at first tried to dodge the question. But under O'Connor's repeated and withering questioning, Sekulow finally gave up and admitted that if Davey prevailed, states would be re­quired to offer vouchers for private religious schools.

That clearly did not sit well with the justice. A stern-looking O'Connor ad­mon­ished Sekulow, "What you're proposing here would have a major impact on voucher programs."

Justice Stephen Breyer agreed, asserting, "The implications of this case are breath-taking."

In the end, Sekulow could persuade only two justices to adopt his argument. Antonin Scalia and Clarence Thomas, the most vociferous opponents of church-state separation on the high court, bought the Sekulow line entirely and asserted that denying Davey the scholarship was a form of discrimination.

In a sarcastic dissent, Scalia charged that the ruling in Davey was proof of society's disdain for religion.

"One need not delve too far into modern popular culture to perceive a trendy disdain for deep religious conviction," he wrote.

Scalia, citing a 1996 high court ruling striking down an anti-gay amendment to the Colorado Constitution, asserted that the decision in Davey was further evidence of court-sanctioned bias against religious people.

"In an era when the Court is so quick to come to the aid of other disfavored groups, its indifference to a form of discrimination to which the Constitution actually speaks, is exceptional," he wrote.

The combative justice charged that the decision would spark further discrimination against religious people.

"What's next?" he asked. "Will we deny priests and nuns their prescription-drug benefits on the ground that taxpayers' freedom of conscience forbids medicating the clergy at public expense?"

Conservative and Religious Right groups that had backed the Davey case could find little solace in Scalia's words, coming as they did in such a lopsided defeat.

"We are very disappointed with a decision that clearly sanctions religious discrimination," said a subdued Seku­low.

The defeat was especially bitter because Religious Right groups had pinned so much on the case. Last year, the Alliance Defense Fund, an organization formed by top Religious Right leaders to pool resources and fund court cases in the hopes of advancing the Religious Right's legal vision, made it clear that a win in Davey was an essential part of the ongoing attack on the church-state wall.

"A victory would eliminate another large brick in the artificial wall of 'separation of church and state' which ADF has been working hard since our founding to rebuild to look like what our nation's Founders intended not the ACLU's version," observed ADF head Alan Sears.

The day of the ruling, ADF, which helped fund the ACLJ's case on behalf of Davey, issued a short statement saying the group was "greatly disappointed."

Religious Right stalwart Jerry Falwell decided on a more abrasive response. Appearing on CNBC's "Capital Report" alongside Americans United Executive Director Barry W. Lynn on the evening of Feb. 25, Falwell called supporters of the ruling "people who hate Christ and hate religion and want to throw God out of the public square...."

Asked by co-host Gloria Borger if seven justices of the Supreme Court hate God and religion, Falwell replied, "No, no, no, no. I said that's what people who hate God and your guest there is one of them, Barry Lynn. He calls himself a reverend, but he's not."

Lynn refused to dignify Falwell's crude personal attack by responding in kind. Instead, he stuck to the issue, praising the Davey ruling as "a very good decision, a very common-sense decision."

The Institute for Justice (IJ) tried a different tack. In a press statement, the pro-voucher group tried to argue that the Davey ruling was really no big deal.

Last September, the IJ put out a statement asserting that a favorable ruling in Davey would topple roadblocks to religious school vouchers in the states. Having lost, the Institute abruptly shifted gears and issued a statement calling the ruling "narrow" and insisting it was not harmful to the "school choice" movement.

Americans United's Lynn begged to differ. The decision, said Lynn, completely deflated a major Religious Right strategy of compelled taxpayer support for religious education.

"This is a huge defeat for those who want to force taxpayers to pay for religious schooling and other ministries," said Lynn. "This maintains an important barrier to efforts to fund school vouchers and other faith-based programs. Americans clearly have a right to practice their religion, but they can't demand that the government pay for it."

Continued Lynn, "Religious Right lobbyists have argued over and over again that if government provides funds for secular activities it must do so for religious activities as well. The high court has squashed that tired argument, pointing to the fact that this nation has a long-held tradition against levying taxes to fund religion."

Lynn said the decision should be useful in turning back legal challenges in Vermont and Maine by the Institute for Justice, which is seeking to force those states to fund religious education. He said it would also be useful in ongoing litigation in Florida and Colorado, where vouchers are being challenged by Americans United and other groups.

The ruling, Lynn added, also has implications for the Bush administration's "faith-based" initiative. Adminis­tration officials have argued that government must fund religious groups alongside secular ones. The Davey ruling, Lynn said, gives states the flexibility to deny faith-based funding if their state constitutions forbid it.

"The Bush administration has urged states to implement 'faith-based' programs, saying that government must fund religious social services just as it does secular social services," Lynn observed. "The 'faith-based' initiative suffered a severe blow with today's high court ruling."

Administration response to the decision was muted. Asked about the ruling during a Feb. 25 White House press briefing, Press Secretary Scott Mc­Clellan said "it's something we're still reviewing." He insisted it would not affect the faith-based initiative.

A day later, during a telephone press conference, White House "Faith Czar" James Towey made the same argument.

"It really turned on a unique characteristic of Washington State's Consti­tution," Towey said. "The decision yesterday did not change at all the landscape for President Bush's faith-based initiatives."

Some legal scholars sharply disagreed.

"The Supreme Court declared that a state's refusal to subsidize religion does not amount to a violation of the religious freedom provisions of the First Amendment," said AU Legal Director Ayesha Khan, who co-authored a friend-of-the-court brief along with Aaron Caplan, legal director of the ACLU of Washington State. "It's an act of desperation to claim that this reasoning would not apply to vouchers and the 'faith-based' initiative."

Marci Hamilton, a frequent commentator on church-state issues who holds the Paul R. Verkuil Chair in Public Law at the Benjamin N. Cardozo School of Law, Yeshiva University, agreed.

"Locke v. Davey may well have a ripple effect that is felt across the nation," Hamilton wrote Feb. 27 on Hamilton asserted that the ruling "does not bode well for the 'charitable choice' laws," noting, "These laws, of course, allow government money to go directly to religious, as well as secular institutions."

Continued Hamilton, "Charitable choice supporters argued that it would have been discriminatory, and unconstitutional, to continue to exclude religious charities from funding to which secular charities had access. But Locke v. Davey decimates that argument."

In an interview with Church & State, Hamilton remarked, "Locke v. Davey is a landmark case in this era because it clarifies that the free exercise of religion does not always trump the First Amendment's Establishment Clause, which bars laws 'respecting an establishment of religion.' Some religious groups have sought to interpret freedom of religion in a way that would not only allow but require state funding of religion in certain cases. The high court has plainly rejected that assault."

Legal analysts noted that in the ruling, the majority reaffirmed an important principle of church-state law: the idea that religion is different from other human endeavors. Voucher advocates and other supporters of government-funded religion have long argued that the state is obliged to treat religion like any other form of speech or activity. Thus, they have contended, if government chooses to fund a certain philosophical or political perspective, it must fund religious ones as well.

This assertion was a lynchpin argument for opponents of the church-state wall, and it was utterly rejected by the majority in Davey. Rehnquist noted that state governments and the federal government have a long history of singling out religion for different treatment and that this does not violate the First Amendment.

Observed the chief justice, "Most States that sought to avoid an establishment of religion around the time of the founding placed in their constitutions formal prohibitions against using tax funds to support the ministry.

"The plain text of these constitutional provisions prohibited any tax dollars from supporting the clergy," continued Rehnquist. "We have found nothing to indicate, as Justice Scalia contends, that these provisions would not have applied so long as the State equally supported all other professions or if the amount at stake was de minimis [a trifling amount]. That early state constitutions saw no problem in explicitly excluding only the ministry from receiving state dollars reinforces our conclusion that religious instruction is of a different ilk."

Legal analysts say this passage is a strong rejection of a key right-wing legal argument called "non-preferentialism," or the idea that government can support and fund religion as long as it does so on an equal basis.

AU's Lynn said the result in the Davey case is a welcome reversal from recent trends at the Supreme Court permitting government funding of religion. He thanked AU members for supporting Americans United's involvement in the case through an amicus brief but cautioned that the decision will not slow down those determined to undermine the church-state wall.

"Already the Religious Right and its allies in the pro-voucher movement are looking for ways to circumvent this important ruling," Lynn said. "Ameri­cans United will remain vigilant to protect people from mandatory taxation to pay for religion. Count on it."

State Constitutions And Religion

Thirty-seven states have constitutional provisions that are more explicit than the U.S. Constitution when it comes to restrictions on government funding of religious education or other sectarian institutions. While the language varies from state to state, all provide additional protections against certain forms of taxpayer subsidy of religion.

The 37 states are Alabama, Alaska, Arizona, California, Colorado, Delaware, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Mexico, New York, North Dakota, Oklahoma, Oregon, Pennsylvania, South Dakota, Texas, Utah, Vermont, Virginia, Washington and Wyoming.

Most state constitutions are now online through state websites. To find your state's website, go to the "State Resources" section of the Library of Congress' website, called Thomas, at: