Dispatches from the Creation Wars

Surprising Supreme Court Decision on Religion

Posted by Ed Brayton on February 25, 2004
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The Supreme Court issued a ruling today that caught me very much by surprise. The case is Locke v Davey, and it involved a Washington state program that gives scholarships to students based on academic excellence. Joshua Davey was awarded a Promise Scholarship, but when the state found out he was planning to attend divinity school they cancelled it, under a state law that prevents public money from being spent on religious education. 36 other states have similar laws. In a 7-2 ruling today, the SCOTUS upheld that Washington law and ruled that it did not violate Davey’s rights.

The most surprising thing about this decision, in my view and I assume in the views of other court-watchers, is that the decision was written by Chief Justice Rehnquist. He is typically on the other side of such issues. In fact, 2 years ago Rehnquist authored the 5-4 decision in Zelman v Simmons-Harris upholding the Ohio state voucher program that was challenged on the grounds that it resulted in public tax money going to religious private schools. In that decision, Rehnquist wrote,

The instant program is one of true private choice, consistent with the Mueller line of cases, and thus constitutional. It is neutral in all respects towards religion, and is part of Ohio’s general and multifaceted undertaking to provide educational opportunities to children in a failed school district. It confers educational assistance directly to a broad class of individuals defined without reference to religion and permits participation of all district schools–religious or nonreligious–and adjacent public schools.

Without having read the current decision, I’m at a bit of a loss to understand why Rehnquist ruled so differently here. This case has far reaching implications for the president’s faith-based initiative program and for school voucher programs nationwide, but on the surface it doesn’t seem to clear things up much. Stay tuned.

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Comments

  1. #1 EON
    February 27, 2004

    I’ve read the decision, and much to my surprise, I found the more convincing argument in Scalia’s dissent. That’s not to say that I agree with Antonin wholesale, but overall, I find Rhenquist’s reasoning to be a bit strained.

    One particularly noteworthy aspect of the majority opinion is the clear statement that, because the “individual choice” criterion enshrined in Zelman also pertains to the Washington law in Locke, that the states could provide funding to “devotional theology” studies according to a similar legal framework. IOW, it’s up to the states to interpret the Establishment and Free Exercise clauses in their own constitutions in making that call.

    Ergo, one might see Rhenquist’s position as sacrificing his alleged 1st Amendment preferences on the altar of his greater preference for his particular interpretation of federalism. In fact, Zelman might also be interpreted as being an impliedly pro-federalism decision for similar reasons.

    In any event, I haven’t made up my mind as to whether I’ve stumbled across a plausible explanation for the Chief Justice’s unexpected reasoning in Locke. I hope at least that it’s worth considering.

    EON

  2. #2 Ed Brayton
    February 27, 2004

    I had much the same reaction you did, surprise that I found myself agreeing with Scalia’s dissent. Jack Balkin called it “a characteristically Rehnquist opinion; it is like a garden snake– short and slippery.” He also notes that it resolved virtually nothing.

  3. #3 EON
    February 27, 2004

    BTW: the Pew Forum has all the briefs from Locke v. Davey available here:

    http://pewforum.org/school-vouchers/locke/

  4. #4 Flatlander100
    February 27, 2004

    I found the decision somewhat surprising as well, especially the margin of 7-2. And I too am not sure it was decided correctly. I’m not sure at all that the distinction the majority drew between state support for a divinity degree [can be banned by state legislative action] and state support for students attending a religious college or taking religious courses [but not seeking a divinity degree], which the decision implies the state could not eliminate from the general scholarship program without constitutional trouble, can stand close examination. A very curious decision. Be interesting to watch the implications work themselves out down the line.

  5. #5 EON
    February 27, 2004

    Having read the majority opinion a third time, I’m becoming more convinced that Rhenquist did indeed see this as a federalism decision, however “out of left field” that vision may seem.

    The key seems to be that Zelman annunciated something other than a “floor” for federal constitutional protection under the Free Exercise Clause, where the Court resolved in favor of that, rather than anti-establishment. The SCOTUS has always held that state constitutions can provide greater (but not lesser) protection to individuals than does the federal, but Zelman seems like a rather screwy departure from that, in the light of Locke.

    I’m thinking of writing a case note on Locke (for whom, I don’t really know — maybe I’ll submit it to my alma mater’s law review). If you’d like to read it, Ed, I’ll email it to you when I’m done.

    EON