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Court weighs theology scholarships

The Supreme Court could force a vast reordering of government spending if it rules that an ex-divinity student was unconstitutionally denied a state scholarship, a justice said Tuesday during a hearing.

The Supreme Court could force a vast reordering of government spending if it rules that a former divinity student was unconstitutionally denied a state scholarship available to students studying other fields, one of the nine justices predicted Tuesday.

THE HIGH COURT seemed deeply divided over the case of Joshua Davey, who lost a state merit scholarship when he declared theology as his major. The Bush administration backs Davey, arguing that states cannot discriminate against religious education.

Taking the broad view of that argument would mean government would have to be careful not to exclude religious programs in many areas, such as government contracting and medical programs, Justice Stephen Breyer suggested.

“The implications of this case are breathtaking,” Breyer said during an exchange with the Bush administration’s Supreme Court lawyer.

That “sense of doom” is unwarranted, Solicitor General Theodore Olson assured Breyer. The court should consider the stark facts of the case, Olson suggested.

“This is the plainest form of religious discrimination,” where only a student studying religion is excluded from a state program available to anyone else, Olson said.


At least four justices seemed to agree that the state of Washington was within its rights to deny the money to Davey, while four justices presumably think the state should offer the money equally.

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.

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.

The case is in many ways the flip side of the emotional argument over school vouchers. The high court cleared the way for government-funded vouchers programs in 2002.

The latest case asks not whether governments can use tax money to underwrite religious education, as the voucher question did, but whether when money is available, it must be available equally.

Like 36 other states, Washington prohibits spending public funds at schools that are religiously affiliated. The bans, known as Blaine amendments, date to the 19th century when anti-Catholic sentiment ran high.

Davey and his backers say the state law is discriminatory and violates the Constitution’s guarantee of freedom of religion. The state argues the policy did Davey no harm.

A ruling in Davey’s favor could overturn Blaine amendments everywhere.

Davey’s opponents at the Supreme Court have argued that the matter boils down to the states’ rights to spend their money as they see fit.

The Davey case is one of two major church-state debates at the high court this year. The other concerns a California atheist who wants to strip the phrase “under God” from the Pledge of Allegiance.

Davey has since abandoned his ambition for the ministry in favor of Harvard Law School, but said he is still bothered that the state seemed to slight his first choice.

“From my perspective it was very unfair and kind of arbitrary,” said Davey, a devout Christian.

“I was being told that that value wasn’t important and wasn’t worth the state’s money.”

The case began in 1999, when Davey qualified for a Promise Scholarship, a state-funded program for high-achieving students of modest means. The scholarship of about $3,000 never came through, because Davey decided to study for the ministry at Northwest College in Kirkland, Wash.

Davey sued in federal court three years ago. The San Francisco-based 9th U.S. Circuit Court of Appeals sided with Davey last year, finding that the state had no compelling interest in limiting what he could study.

A ruling from the Supreme Court is expected by summer.

The case is Locke v. Davey, 02-1315.

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