WASHINGTON – Joshua Davey had been a freshman at a Christian college in Washington state for all of two months when he got the unwelcome news: State officials were yanking away a scholarship he’d been counting on to help pay for his first year.
It wasn’t poor grades or misconduct that cost Davey the scholarship, but his course of study: Davey had declared a major in pastoral ministry, and state officials concluded they couldn’t use taxpayer money to help finance his religious training.
Given the option of changing his major or giving up the scholarship, Davey walked away from the two-year state Promise Scholarship, which he had received based on his grades and family income. But he also contacted a public interest law firm about pursuing legal action against the state, kicking off a four-year battle that will reach the U.S. Supreme Court on Tuesday.
“I really felt it was an injustice,” said Davey, 23, now a first-year student at Harvard Law School. “The kind of reasons I wanted to go into the ministry – to benefit society, help other people – are exactly the kind of things the government should be encouraging.”
But the issues in the case go far beyond whether Davey will be reimbursed for the scholarship, which amounted to $1,125 his first year. Many observers say the case has the potential to bolster state school voucher programs as well, because a ruling in Davey’s favor could remove barriers to including religious schools in those programs.
“There are a lot of students in Josh Davey’s situation – where they’ve met the criteria, had excellent grades and needed economic help, yet were denied the ability to go to religious schools because of the religious affiliation,” said Jay Sekulow, the chief counsel of the American Center for Law and Justice, who will argue on Davey’s behalf Tuesday.
To Sekulow and Davey’s supporters, excluding those students from state aid programs penalizes them because of their religious beliefs – a clear violation of the 1st Amendment. They contend – and a California-based federal appeals court agreed – that Washington officials discriminated against Davey when they revoked his scholarship.
In its ruling last year, the appeals court said singling out a student because of his religious major and denying him a government benefit violates his ability to freely exercise his religious beliefs.
“The 1st Amendment declares: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof,’ ” the appeals court said. “Thus, the state may neither favor, nor disfavor, religion. A law targeting religious beliefs as such is never permissible.”
Washington state officials counter that they weren’t discriminating against anyone. They say they simply were complying with their state constitution, which erects a high wall to keep church and state separate. Washington and about a dozen other states have constitutions written to ensure an even greater separation of church and state than provided by the U.S. Constitution.
“We’re defending the constitutional provision that provides that taxpayers should not be compelled to provide funding for religious activities, should not be compelled to fund religious activities with which they disagree,” said Narda Pierce, the Washington solicitor general who will defend her state’s policy before the Supreme Court.
But courts have held that the state constitutions are limited by the 1st Amendment’s Free Exercise Clause, which prohibits states from infringing on a person’s right to freely exercise religious beliefs. In other words, they can’t erect so high a wall that they interfere with a person seeking to freely exercise beliefs.
The U.S. Court of Appeals for the 9th Circuit ruled that the state had done just that when it denied Davey a scholarship. But a dissenting judge argued that Washington officials were not suppressing Davey’s religious beliefs when they declined to fund his religious instruction.
“He is free to practice his religion without restriction,” the dissenting judge wrote. “The only state action here was a decision consonant with the state constitution, not funding “religious … instruction.”‘
Davey’s case came about in the fall 1999.
After enrolling at Northwest College, a school near Seattle affiliated with the Assemblies of God church, Davey had declared a double major in pastoral ministries and business, planning to become a Christian minister. Two months later, state officials notified financial aid officers throughout the state that students pursuing theology degrees could not get the Promise Scholarship.
They said they were relying on Washington law dating back to a provision in the state’s 1889 constitution, which provides that “no money or property shall be appropriated for or applied to any religious worship, exercise or instruction, or the support or any religious establishment.”
Pierce, the Washington solicitor general, said Davey’s course of study included an internship in pastoral ministries, in which he went to church and worked with a minister, as well as reading about the Bible.
“These are the kind of subject matters the legislature presumed would be involved in getting a degree in theology,” Pierce said. “It’s the kind of instruction framers of our constitution didn’t want taxpayers to fund.”
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AP-NY-12-01-03 1909EST
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