Government is not required to aid religion.

Sometimes Supreme Court decisions are most important for what they don't do. This is certainly true of the Court's recent ruling in Locke v. Davey, which held that a state government can restrict its college scholarships to prevent them from being used by students studying for the ministry. (1)

Recently, the Court has expanded the government's ability to aid religious institutions. An example is its decision in Zelman v. Simmons-Harris, holding that students who attend parochial schools may use school vouchers. (2)

The Locke Court was urged to hold that the government must fund religious education if it funds secular studies. The Court's rejection of this position is a major victory for those who believe that there should be a wall separating church and state.

The Court emphasized that although a state government may constitutionally allow use of its scholarships for religious studies, it is not constitutionally required to do so. A contrary ruling would have dramatically changed the law: It would have meant that any time a state provides assistance to private secular entities, it would have to give the same aid to religious institutions. Ultimately, Locke means that governments at all levels may choose how they want to spend taxpayers' money and the extent to which they want to support religion financially, if at all.

Locke involved a state of Washington program that awards scholarships to outstanding students who attend instate colleges. To be eligible for a "Promise Scholarship," a student must either graduate in the top 15 percent of a public or private high school in the state or, on first attempt, have a minimum score of either 1,200 on the Scholastic Aptitude Test I or 27 on the American College Test. Students who qualify academically and financially must use the scholarship to attend an accredited college, public or private, in Washington. Students must be enrolled at least part-time, and they may not use the scholarship to study for the ministry.

The state justified this restriction based on a provision in its constitution that provides that "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." (3)

Free-exercise argument

Joshua Davey received a Promise Scholarship and enrolled at Northwest College, a private Christian college affiliated with the Assemblies of God denomination. He sought to become a minister and pursued a double major in pastoral ministries and business management/administration.

When Davey learned he was ineligible for the scholarship because of his ministry major, he filed a lawsuit challenging the restriction. Davey argued that the state of Washington violated the Free Exercise Clause of the First Amendment by offering scholarship assistance only to students who pursued secular studies.

The Supreme Court rejected that contention in a 7-2 decision and ruled in favor of the state. The Court emphasized that Washington could award its scholarships to students studying to become clergy members, if it were to choose that option.

In Witters v. Washington Department of Services for the Blind, the Court unanimously ruled that the state had not violated the Establishment Clause of the First Amendment by permitting students who received scholarship assistance to study for the ministry. (4) Thus, in Locke, Chief Justice William Rehnquist began the majority opinion by observing: "[T]here is no doubt that the state could, consistent with the federal Constitution, permit Promise scholars to pursue a degree in devotional theology." (5)

However, the Court held that the state's decision to deny Davey the scholarship money because he wanted to use it to study to be a minister does not interfere with his free exercise of religion in any way. He still can receive training to be a pastor, just without a government subsidy.

Rehnquist explained that the state "imposes neither criminal nor civil sanctions on any type of religious service or rite. It does not deny to ministers the right to participate in the political affairs of the community. And it does not require students to choose between their religions beliefs and receiving a government benefit." (6) Rather, the "state has merely chosen not to fund a distinct category of instruction." (7)

The Court stressed that many states have sought to limit the use of taxpayers' money to subsidize religious institutions. Indeed, Rehnquist wrote, "since the founding of our country, there have been popular uprisings against procuring taxpayer funds to support church leaders, which was one of the hallmarks of an 'established' religion." (8) The Court pointed out that many states go further than the federal Constitution's Establishment Clause in restricting the rise of government funds to support religious institutions.

Justices Antonin Scalia and Clarence Thomas dissented, arguing that the denial of funds for devotional studies impermissibly discriminated against religion. If the government chooses to create a scholarship program, they said, it must allow the funds to be used by students studying for the ministry. The majority opinion expressly addressed and rejected this contention:

   [T]he subject of religion is one in which
   both the United States and state constitutions
   embody distinct views--in favor of free
   exercise, but opposed to establishment--that
   find no counterpart with respect to
   other callings or professions. That a state
   would deal differently with religious education
   for the ministry than with education for
   other callings is a product of these views, not
   evidence of hostility toward religion. (9)

Financial aid parity

At first glance, the Supreme Court's decision may seem unremarkable; the Court simply held that government does not have to pay for students to be trained as ministers. But the underlying issue is enormously important: If a government provides aid to private secular institutions, must it give the same assistance to religious entities? For example, if a city or state government creates a program to aid public and secular private schools, is it constitutionally required to give the same assistance to religious schools?

Many state constitutions have provisions, like Washington's, that prevent direct or indirect aid to religion. In light of the Court's Zelman decision allowing school vouchers for parochial school students, challenges to voucher programs are now proceeding under state constitutions.

Had the Supreme Court ruled differently in Locke, state constitutional provisions prohibiting vouchers from being used in parochial schools would have violated the First Amendment. States would have been constitutionally compelled to allow vouchers to be used for religious education.

The implications of a different decision in Locke v. Davey would have extended far beyond the educational context. For example, if the government had chosen to give money to a secular institution to provide drug or alcohol rehabilitation, it then would have been required to give the same funds to religious institutions to provide religion-based services.

President Bush has urged Congress to create such a program for "charitable choice," providing federal funds for faith-based entities that offer social services. If the Supreme Court had ruled in favor of Joshua Davey and concluded that denying funding for religious instruction was unconstitutional, the logical implication would have been that "charitable choice" was constitutionally required.

Ultimately, the Court's decision can be understood as a ruling that allows government to decide whether, and how much, it wants to support religion. Under the Court's analysis, each state can make its own choice, in its state constitution and through its legislative processes.

The Supreme Court recognized that the case posed an issue where there is some tension between the Establishment and Free Exercise clauses, but it concluded that the tension ultimately must be resolved by the political process and not by the courts.

Notes

(1.) 124 S. Ct. 1307 (2004).

(2.) 122 S. Ct. 2460 (2002).

(3.) WASH. CONST. art. I, [section] 11.

(4.) 474 U.S. 481 (1986).

(5.) Locke, 124 S. Ct. 1307, 1311-12.

(6.) Id. at 1312-13.

(7.) Id. at 1313.

(8.) Id.

(9.) Id.

ERWIN CHEMERINSKY is the Sydney M. Irmas Professor of Public Interest Law, Legal Ethics, and Political Science at the University of Southern California.