Church & state: a 200-year debate continues: when Joshua Davey lost a state scholarship because he majored in theology, he took his case all the way to Supreme Court.

Joshua Davey met the requirements for Washington state's college-scholarship program: He graduated in the top 15 percent of his class at University High School in Spokane in 1999, and also came from a family with a modest income.

But there was a hitch. Davey, an evangelical Christian who planned to become a minister, enrolled in Northwest College, a Christian school near Seattle in September 2000, and declared his major as theology. In October, the state informed him that it was rescinding the $2,700 scholarship he had won the previous spring, because Washington state law forbids the use of public money for students majoring in theology.

Unfair, according to Davey. "They're giving it to everyone except those who want to study religion," says Davey, now 23. "If a student wants to study Christianity or Buddhism, it isn't up to the state to decide." Davey said he believed the state had discriminated against him because of his religion, and he decided to sue to have its decision overturned.

TO THE SUPREME COURT

After working its way through the lower courts, Davey's case, Loeke v. Davey, is expected to be argued before the U.S. Supreme Court later this fall. The Court opened its 2003-04 term on October 7. (See "Also on the Courts Docket," pg. 10.)

Davey's case is one of several the Supreme Court has considered recently that deal with the ever-shifting relationship in American life between church and state. Last year the Court ruled that taxpayer money in the form of school vouchers could be used to pay for religious-school tuition. In August, the Court refused to block a lower federal court order to remove a Ten Commandments monument from the state Supreme Court building in Alabama. The U.S. Supreme Court may decide later this term to hear a case that will determine whether the phrase "tinder God" in the Pledge of Allegiance can be recited in public schools.

For almost the country's entire history, the relationship between religion and government--and how to interpret the Constitution's First Amendment has been fiercely debated. The amenchnent's first part ("Congress shall make no law respecting an establishment of religion...") has been the basis of arguments over the government's involvement with religion, ranging from organized prayer in public institutions to tax money for churches; the second part ("or prohibiting the free exercise thereof...") protects the rights of individuals to worship as they please. The two parts have often been at odds.

AN OLD ARGUMENT REVISITED

"This has been the debate for 60 years," said Michael Broyde, an Emory Law School professor specializing in church-state law. Referring to the many cases in this area, he said: "They're all a balance between the free-exercise right, and society's right not to have an established religion."

In Davey's case, the state of Washington will argue that its own state constitution reflects the U.S. Constitution's ban on stablishing religion and forbids using state money for the study of religion. The state will further argue it has the right to set boundaries on what state scholarships will pay for. Ten other states prohibit taxpayer money for theology study and could be affected by a ruling in the case.

"The Constitution says you can't make it illegal to practice religion, but it says nothing about the state being required to pay for it," says Aaron Caplan, a staff attorney for the American Civil Liberties Union (ACLU), a civil-liberties watchdog group. The ACLU supports the state in the case.

EQUAL ACCESS

Lawyers for Davey will emphasize the part of the First Amendment guaranteeing the flee practice of religion. They hold that Davey won his scholarship like any other student, and that the state singled out his religious beliefs for penalty.

"Can the state remove a scholarship from someone for the sole reason he was following through on his conscience?" asks Jay Sekulow, chief counsel of the American Center for Law and Justice in Virginia Beach, Virginia, a Christian legal group, affiliated with the evangelist Pat Robertson, that represents Davey. "The government can't be hostile to religious believers."

The Davey case will be heard four decades after the Court forbade organized prayer and mandatory Bible reading in public schools, practices that had been widespread. But in a series of recent cases, the Court has invoked a general prin ciple of equal access in order to expand the space allowed to religion in public life, including school prayer.

In 2000, it found in a Texas case that prayers organized by school officials and recited over loudspeakers before public high school football games violated church-state separation. But in 2001, the Court let stand a lower-court ruling in an Alabama case that permits student prayer in public-school assemblies and classrooms, as long as school officials aren't involved and don't force participation.

ROY'S ROCK

The Davey case comes during heightened tensions over the church-state relationship. In August, the other justices on the Alabama Supreme Court suspended Chief Justice Roy Moore for refusing to remove a 5,280-pound Ten Commandments monument from the rotunda of the state Supreme Court building. A federal court had ruled that Roy's Rock, as the monument came to be known, violated the Constitution's church-state separation requirement. The monument was removed on August 28 to a nonpublic area of the building in Montgomery, but not before hundreds of people came to the courthouse to protest its removal.

CRECHES AND CANDY CANES

The Roy's Rock dispute shows how complex the churchstate debate can be. Though the U.S. Supreme Court refused to intervene in the Alabama case, the facade of the Court's own building in Washington has a stone relief of Moses holding the Ten Commandments. But courts have often ruled that similar displays don't violate the Constitution when they focus on a nonreligious subject, in this case, the history of law.

The Supreme Court made similar distinctions in rulings during the 1980s on displays of creches, or other Christian symbols, at public spaces during the Christmas season. The Court ruled that a Pawtucket, Rhode Island, holiday display that included a creche, a Santa Claus, candy canes and other items was permitted, since the overall effect was nonreligious. But the Court later ruled that a creche standing alone in a Pittsburgh court building violated the Constitution, since it appeared to endorse one religious sect.

Davey remains hopeful for a victory in his case. But for him, the church-state separation debate has already had a more personal result.

"As the lawsuit unfolded," he said, "I was fascinated by how the whole thing worked." In August, he dropped his plans to become a minister and entered Harvard Law School.

With reporting by Linda Greenhouse. Adam Liptak. Jeffrey Gettleman, and David

Firestone of The New York Times,

Also on the Court's Docket....

Some of the important cases the Supreme Court will consider in its 2003-04 term:

POLICE QUESTIONING: In Missouri v. Seibert, a police officer intentionally didn't read a suspect her rights before a first confession. A second confession, after the warning was read, was used against her. The Court will decide whether the double confessions violated her Fifth Amendment right against self incrimination.

POLICE SEARCHES: In U.5. v. Banks, police burst into a suspect's North Las Vegas apartment 15 to 20 seconds after knocking. The Court will examine whether the brief time period violated the suspect's rights against illegal search and seizure.

DEATH PENALTY: Last spring the Supreme Court halted Derma Banks's execution in Texas only minutes before it was scheduled, In Banks v. Cockrell, the Court will examine whether he was wrongly convicted, due to ineffective legal counsel and evidence that was suppressed at his trial.

POLITICAL FUND-RAISING: Meeting outside its normal term for the first time since the Watergate case in 1974, the Supreme Court heard MConnell v. Federal Election Commission on Sept. 8. The Court will consider whether last spring's campaign-finance law violates First Amendment free-speech rights of political groups and individuals.

FREEDOM OF INFORMATION: A California lawyer sued to obtain photographs from the suicide investigation of former Clinton administration counsel Vincent Foster. In Office of Independent Counsel v. Favish, the Court will examine what government records must be released to the public.

FEDERAL AND STATE LAW: In Tennessee v. Lane, two paraplegics sued Tennessee, arguing that the state was violating federal law by not providing disabled people access to courthouses. The case will turn on whether federal taw overrides a Tennessee taw forbidding lawsuits against the state.

A 200-year church-state debate: the Supreme Court considers the legality of tax-funded scholarships for theology students

DISCUSSION QUESTION

* Does the Moses relief at the Supreme Court rebut the argument that the U.S. maintains separation of church and state?

* Do you support Joshua Davey's appeal?

TEACHING OBJECTIVES

To help students understand key cases coming before the Supreme Court this term. Among these is a first amendment case in which the Justices may decide whether a state can deny a scholarship to a student because he or she majors in religion.

CLASSROOM STRATEGIES

Before Reading: Make copies of the first amendment to the constitution and distribute to students. Tell them to pay particular attention to the ban on the "establishment of religion."

QUESTIONS TO CONSIDER: Before students go farther, ask them to answer the following questions:

* What does the constitution mean when it speaks about the "establishment of religion"? Does that mean one state-funded national religion, such as Catholicism or Judaism? (Look to the Alabama case for an answer.)

* What does the constitution mean when it speaks about one's right to "the free exercise" of religion? Are there religious practices that government might prohibit? (Ritual animal sacrifice or religious beliefs that require withholding medical care from children are two examples of situations where government has regulated or prohibited religious practice.)

FREE-SPEECH DEBATE: After students read the article, break them into two groups. Have one group argue in favor of the constitutionality of tax-funded scholarships for religion majors, and the other argue against the constitutionality of such scholarships.

ADDITIONAL DISCUSSION: Ask students to respond to the following statement:

* "Scholarships for theology students benefit society as much as scholarships for students majoring in science, history, or other disciplines."

What argument might students make that religious leaders, like those in other disciplines, assist in the development and progress of society? (In light of the recent disclosures of business corruption, one argument might address the role of ethics in society.)

How might one rebut this argument? (Since the U.S. is religiously diverse, giving tax-funded scholarships to members of one, two, or even 20 religious groups discriminates against nonbelievers.)

Upfront QUIZ 1

MULTIPLE CHOICE

Directions: Circle the letter next to the correct answer.

1. "Church and State: A 200-Year Debate Continues" implies that Joshua Davey won his scholarship because

a he lived in the state of Washington.

b he was judged to be of sound moral character.

c his grades were good and his family's income modest.

d his scholarship application was among the best.

2. Two factors were key to the rescinding of Davey's scholarship. These were his choice of major and

a a court order.

b Washington state law.

c church regulations.

d a formal complaint filed by a civil-rights organization.

3. Laws governing church-state relations are constantly shifting. Last year, the Supreme Court ruled that taxfunded vouchers could be used to pay for

a religious training.

b private prep schools.

c religious survey courses in public colleges.

d religious-school tuition.

4.The issue in a Pledge of Allegiance case the Supreme Court may decide to hear later this term is whether

a the phrase "under God"may be recited in public schools.

b newly naturalized citizens must recite the pledge.

c descendants of the author of the pledge should be paid.

d members of certain religious groups may be exempted from reciting the pledge.

5. The stone relief of Moses at the Supreme Court does not violate separation of church and state doctrine because

a it was there before today's church-state controversy.

b Moses was Jewish; today's conflict involves Christians.

c an exception was granted because of the cost of removal.

d it focuses on the history of law, a nonreligious subject.

6. Which constitutional issue is involved in "Miranda rights"?

a illegal search and seizure by police

b freedom of movement

c the right against self-incrimination

d the right to trial by jury

Upfront Quiz 1

1. (c) his grades were good and his family's income modest.

2. (b) Washington law.

3. (d) religious school tuition.

4. (a) the phrase "under God" may be recited in public schools.

5. (d) It focuses on the history of law, a nonreligious subject.

6. (e) the right against self-incrimination.