Last Thursday, the Supreme Court proved wrong people who alleged that it was a bastion of conservatism and Reagan appointees, reminding everyone that Supreme Court justices a lot less partisan than people think (and others hope) they are. The case in question is Locke v. Davey (02-1315) and involves the use of public scholarship money for a religious degree program. Plaintiff Locke, governor of Washington (representing the state, of course), sued Davey on the grounds that Davey's pursuit of a devotional theology degree violates the state constitution. From the syllabus:

Respondent Davey was awarded a Promise Scholarship and chose to attend Northwest College, a private, church-affiliated institution that is eligible under the program. When he enrolled, Davey chose a double major in pastoral ministries and business management/administration. It is undisputed that the pastoral ministries degree is devotional. After learning that he could not use his scholarship to pursue that degree, Davey brought this action under 42 USC §1983 for an injunction and damages, arguing that the denial of his scholarship violated, inter alia, the First Amendment's Free Exercise and Establishment Clauses.

The District Court upheld the state's decision, but the Ninth Circuit Court reversed it, "concluding that, because the State had singled out religion for unfavorable treatment, its exclusion of theology majors had to be narrowly tailored to achieve a compelling state interest under Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 US 520. Finding that the State's antiestablishment concerns were not compelling, the court declared the program unconstitutional."

I assumed the Supreme Court would uphold the decision of the Ninth Circuit Court, citing that it was the student's interest at stake, not the church to which he belonged. Reading further, though, I realized that the Court, once again, made sense. The state of Washington is not compelled to fund any religion with government money. In this case, it has not discriminated against any particular religion; rather, "The State has merely chosen not to fund a distinct category of instruction." The Constitution does not forbid the government from not funding religious institutions, and the Court recognizes "devotional theology" as a degree on the track for becoming a minister. Moreover, the scholarship (called the Promise Scholarship Program) can be used by students to attend religious universities and take devotional theology classes. What the scholarship does not do is fund a student whose ultimate goal is entering the ministry, based upon the unique constitution of the state of Washington, "which has been authoritatively interpreted as prohibiting even indirectly funding religious instruction that will prepare students for the ministry." The relevant part of the Washington state constitution clearly spells this out: "No public money or property shall be appropriated for or applied to any religious worship, exercise or instruction, or the support of any religious establishment." Pretty cut and dry, don't you think?

But does this violate the federal constitution? Chief Justice Rehnquist, writing the majority opinion, talks about the "play in the joints" between the Establishment Clause ("Congress shall make no law respecting an establishment of religion") and the Free Exercise Clause (". . . or prohibiting the free exercise thereof") of the First Amendment. As Rehnquist puts it, "There are some state actions permitted by the Establishment Clause but not required by the Free Exercise Clause." The state's scholarship not funding a devotional theology degree does not prohibit the "free exercise" of religion (by the people themselves), but the state could just as easily choose to fund devotional theology degrees for all religions. Therefore, the state of Washington, in choosing not to fund religious programs at all, is not in violation of the federal constitution. A lack of funding for religious programs in Washington does not prohibit the people from freely exercising their religion. The state is not compelled by the federal constitution to respect religion in the sense that, if it must choose between respecting all religions and respecting no religions, it must choose the former. Not respecting any religions is not the same as respecting a particular religion; the point is moot since there is no respecting at all.