Supreme Court Justices Argue Over Church-State Case

Is the law discriminating against religion or sustaining state and taxpayers rights?
( [email protected] ) Dec 03, 2003 09:51 AM EST

The Supreme Court showed marked divisions over the famed case challenging a Washington state law that excludes theology majors from eligibility for state scholarships. During Tuesday’s hour-long debate, the justices considered the vast array of far-ranging reverberations to the key church-state case.

"The implications of this case are breathtaking," said Justice Stephen Breyer, who suggested that if the Washington law is found unconstitutional, all government programs from schools to social welfare benefits "must fund all religions."

On the other hand, the speakers seemed troubled by the exclusion posed by the law.

The Washington law is “the plainest form of religious discrimination," sending out a clear message that religious study is "disfavored and discouraged,” argued Solicitor General Theodore Olson.

The litigant Joshua Davey was among those present at the Locke v. Davey case session held at the Supreme Court. Davey, currently a student at Harvard Law, sued the state in 1999 for withholding the $1,000 promise scholarship he earned in highschool because of his choice to attend a seminary.

Davey was represented by Jay Sekulow, chief counsel of the American Center for Law and Justice, who was bombarded with a slew of questions from the bench that made it virtually impossible for him to argue the case.

"My notes could have been lost in the wind, and it wouldn't have mattered," said Sekulow . "I had not one chance to get to a thematic point I planned to make."

Nonetheless, Sekulow left the session optimistically, believing that the ruling by the 9th U.S. Circuit Court of Appeals striking down the Washington law that “targeted religion” will be upheld.

The case reflected the Court's long-running debate over how to ease the tension between the establishment clause and the free exercise clause of the First Amendment. Opponents pointed out that the law only excludes scholarship provisions to theology majors; when students of other majors take the same classes, they are eligible to receive the scholarship.

As expected, no consensus was made after the session.

Supporters of the law upheld the need to separate church from state, and appealed to the Court’s respect for states’ rights. They also argued that taxpayers should not have to subsidize a student’s religious training.

Justice Breyer called it a "very crude effort" to identify those who plan to become ministers, and Justice David Souter called it a "bad job of line-drawing." Justice Anthony Kennedy repeatedly asked what the state's interest was in singling out theology majors. At one point he also said the law forced students to "surrender their religious beliefs," which he said was a "very serious violation of religious conscience.