Vouchers reloaded: Washington state scholarship case at Supreme Court could rewrite church-state law in America. (Cover Story).

College freshman Joshua Davey decided in 1999 that he wanted to study for the ministry and become a pastoral counselor--and that Washington state taxpayers should help him meet that religious goal.

State officials had other ideas. Although they initially approved a $1,125 "Promise Scholarship" for Davey, staffers at Washington's Higher Education Coordinating Board rescinded it when they learned that the young man planned to become a minister.

In a letter to Northwest College, the Assemblies of God-run institution near Seattle where Davey had enrolled, Board officials cited provisions in the Washington Constitution that bar any diversion of tax funds for religion.

"[T]he State Constitution is clear regarding the separation of church and state," John Klaeik, the Board's associate director wrote. "We have consistently interpreted this constitutional provision as prohibiting state financial aid funds for students who are pursuing a degree in theology."

TV preacher Pat Robertson's legal group, the American Center for Law and Justice (ACLJ), immediately sensed an opportunity. The facts were very sympathetic: Davey, a young man from a family of modest means, had qualified for the scholarship because of academic achievement and hard work. Now, mean-spirited bureaucrats were trying to take it away.

That was the ACLJ's media spin. The reality is somewhat more complex. Like many states, Washington has a provision in its constitution barring direct tax support for religious purposes. Religious Right groups would like to see these provisions made null and void and open the floodgates to numerous forms of government support for religion, not just scholarship aid for needy students. They see Davey's case as their best shot.

The Religious Right is already well on the way to achieving its goal. In July of 2002, the 9th U.S. Circuit Court of Appeals ruled 2-1 in Davey's favor. Denying him the scholarship aid, the court declared, is a violation of religious freedom and a form of discrimination. Washington state officials appealed, and in May, the U.S. Supreme Court announced it would hear the case.

Davey v. Locke has the potential to dramatically reshape the relationship between church and state in America. In June of 2002, the high court ruled vouchers for private religious schools constitutional, holding that states may choose to offer this type of assistance to religious education if they want to. The decision in the Davey case would build on that ruling and greatly expand government funding of religious education in America.

Although the court majority's affirmed vouchers in the Zelman v. Simmons-Harris case, they did not rule that students in religious schools have a constitutional right to tax aid--merely that states could offer it if they wanted to. A ruling that such aid can actually be required by the Constitution in some cases is quite another matter. Such a ruling, advocates of church-state separation say, could result in massive government funding of religion in the United States 

Given all that is at stake, staffers at Americans United are watching the case closely, and the group's Legal Department will weigh in with a brief defending church-state separation.

"For more than 200 years, religion in America has been funded with voluntary contributions," said Barry W. Lynn, executive director of Americans United. "Many states want to keep it that way and should have the right to shield people from paying the equivalent of a religion tax."

Continued Lynn, "The bottom line here is simple: Muslims should pay to train imams, Catholics should pay to train priests and Jews should pay to train rabbis. The government shouldn't pay to train any member of the clergy."

Attorneys at AU say the case presents an important larger issue: If the Religious Right prevails, as many as 37 states may be forced to stop enforcing provisions in their state constitutions that bar tax funding of religion. With these provisions neutered, advocates of separation of church and state will have lost an important line of defense against vouchers and other forms of government aid to religion.

These state provisions are often called "Blaine Amendments" by the Religious Right. Far-right legal groups and their allies assert that the provisions are modeled on a federal constitutional amendment offered by U.S. Sen. James G. Blaine, a Maine Republican, in the post-Civil War period. (Blaine's amendment would have explicitly barred the federal and state governments from supporting religious education.) They also assert that the provisions sprang from hostility toward the Roman Catholic Church, which was rapidly growing in some parts of the United States at that time.

That history contains many flaws. In fact, many state "Blaine" amendments had nothing at all to do with Blaine, having been inserted into state constitutions years before he entered politics. Others were rewritten by state constitutional conventions and approved by voters in the modern era. In any case, these provisions reflect not anti-Catholicism, but a desire to shield taxpayers from being forced to support religious groups against their will. (See "The Blaine Game," September 2002 Church & State.)

Proponents of vouchers and other types of taxpayer aid to religious schools and institutions know that these provisions could block their scheme to make government-funded religion the law of the land. They have been gunning for these state constitutional provisions for a long time, operating a well-funded and sophisticated lobbying and public relations campaign to portray the provisions as discriminatory. Under their view, the states' failure to actively subsidize religion and religious education is a form of discrimination.

Semantics was key to the public relations drive. Right-wing groups never use terms like "government aid to religion" or "state-supported religion." Instead, they use the much-less threatening word "accommodation" to describe their legal theory. To many people, the idea of government "accommodating" religion sounds reasonable--because they are not told that accommodation means that Americans end up paying the equivalent of a religion tax.

Behind the drive is hostility to church-state separation and public education, two common Religious Right targets. These groups, along with their allies in the libertarian, free-market-worshipping right, long ago realized that a Supreme Court blessing of vouchers would do little good if three-fourths of the states had language in their constitutions barring state support of religious education.

Even before the Supreme Court approved vouchers, Religious Right and libertarian-oriented legal groups like the Institute for Justice were in federal court arguing that the state "no aid to religion" provisions were discriminatory and unconstitutional. A survey by Americans United's Legal Department found lawsuits in nine states that involve some form of challenge to "no-aid" amendments.

Until the 9th Circuit ruling, federal courts were rejecting the Religious Right-led effort to wipe out the "no-aid" provision. Emboldened by that ruling, these organizations are now salivating at the prospect of a Supreme Court decision that could render these state provisions meaningless in one swoop.

"The Supreme Court has the potential to strip away the last legal defense school choice opponents have," Clark Neily, senior attorney for the Institute for Justice, said in a press release.

Robertson is also excited about the case. Speaking on "The 700 Club" the day after the high court announced it would hear the dispute, the Virginia televangelist made the rather novel argument that U.S. states should drop the provisions because even communist countries allowed theology to be studied in universities.

"I learned the other day that the Soviet Union, in, in Russia and also the communists in Germany and other communist countries, never closed down the theological foundations of the universities because they said you cannot have a university without theology," Robertson said. "Now, they may have distorted it, but they always kept the theological faculty because that is the foundation of the universities of the Middle Ages and all the way through. So if somebody wants to study theology, after all, James Madison studied theology at Princeton and then he went on to write the Constitution. So it isn't exactly something that, that should be proscribed and the idea of theological studies is very appropriate in any university setting whatever the career path that leads to."

Robertson had, as usual, raised irrelevant issues. No one is suggesting that universities not be permitted to teach theology, only that taxpayers not be required to pay for the training of members of the clergy. As for Madison, the fact that he studied theology at Princeton isn't relevant to this dispute, since he paid for it himself.

(Robertson also lauded Sekulow's legal skills, asserting that watching him argue before the Supreme Court is "like watching Hank Aaron.")

If Robertson's ACLJ and groups like the Institute for Justice are successful at the high court, the decision could have a dramatic and immediate effect. In Florida, Americans United and other groups are challenging Gov. Jeb Bush's voucher plan in state court. Last year, a state trial court, citing provisions in the Florida Constitution that bar tax money going "directly or indirectly in aid of ... any sectarian institution," struck down the program.

Allowing vouchers, wrote Circuit Judge P. Kevin Davey, would "require a strained construction of the Florida Constitution that is not countenanced under the law."

(The case, Holmes v. Bush, is on appeal to the Florida Court of Appeals.)

In Colorado, Americans United and allied groups filed a lawsuit May 20 against that state's new voucher program. The legal action, Colorado PTA v. Owens, pending in the Denver County District Court, asserts that the measure violates several provisions of the Colorado Constitution, especially the section that states, "No person shall be required ... to support any ministry or place of worship, religious sect or denomination against his consent."

A sweeping ruling in the Davey case would jeopardize both of these lawsuits and could slam the door on future challenges to vouchers based on state constitutions--a result that Religious Right and anti-public education, pro-voucher groups have worked toward for decades.

Is the Supreme Court ready to hand such a sweeping victory to the far right? Four justices seem to be. In a 2000 decision, Mitchell v. Helms, Justice Clarence Thomas, writing for himself and Chief Justice William H. Rehnquist, Antonin Scalia and Anthony M. Kennedy, asserted that government may offer aid to the "religious, irreligious and areligious all alike" and hinted that, under some conditions, such tax assistance to religion may be mandatory.

But Justice Sandra Day O'Connor was unwilling to go that far, thwarting Thomas' desire to reinterpret the First Amendment's church-state separation provisions. Two years later, however, O'Connor provided the crucial fifth vote in the voucher case. Although O'Connor votes with pro-separation justices in school prayer cases, she usually switches sides when the issue is government funding of religion. As such, O'Connor is a weak reed for separationists to cling to. Further complicating the matter are rumors circulating in Washington that O'Connor plans to step down from the court this summer.

Marci Hamilton, Thomas H. Lee Chair of Public Law at the Benjamin N. Cardozo School of Law at Yeshiva University in New York City, agrees that the stakes are high in the Davey case.

"It's a bear," Hamilton told Church & State. "It's a very scary case."

If the high court upholds Davey's argument, Hamilton said, it could lead to other types of government-mandated funding of religion.

"What would be the net effect of a ruling like this?" she asked. "Isn't the logical result that states are now required to fund religious schools? If he wins, and the Washington law now has to encompass him, I can't figure out how you would distinguish this from private/parochial school aid. I don't think you can."

Hamilton, a legal scholar well known for her knowledge of church-state issues, tracks existing government subsidies to religion in an effort to prove that, far from being discriminated against, religious groups already enjoy plenty of government-conferred benefits and sometimes outright subsidies.

Under the Bush administration, the trend is moving toward even more taxpayer-provided perks for religion, Hamilton said. She noted that in late May the Interior Department announced that "historic" houses of worship could begin receiving tax funding for repair and upkeep. Bush has also diverted millions in tax aid to religious groups through various "faith-based" programs and has proposed allowing millions more to go to religious schools through vouchers. This would augment the millions in tax aid religious schools already get through textbook loan programs, purchase of computers and other services, she said.

"The law right now says you can include religious entities in this funding," Hamilton said. "This is the next step in the agenda: that they must be included. It will have repercussions for the whole faith-based approach. They've argued from the beginning that faith-based funding was required, that it was discrimination toward religious groups not to give it."

Continued Hamilton, "What I don't understand is, when will religious groups stop asking for money? Where is the line? Will we have tax-funded salaries for clergy? It boggles the mind."

Americans United's Lynn said Hamilton's scenario is not far fetched. Once a legal principle is established that religious groups have a constitutional right to public funds, it would be difficult, he said, to draw the line.

"Taxpayer-funded religion has been a disaster in other countries," said Lynn. "In the United Kingdom, the government has to pay to maintain and repair many houses of worship because the members have drifted away. As a result, religion there has been drained of its vitality and spark and now performs a largely ceremonial function."

Continued Lynn, "I find it hard to believe that the Religious Right wants the same thing to happen in the United States. But if they do not abandon the course they are on and repudiate state-supported religion, that's exactly what they'll get."